Compliance Mechanisms Under Selected Multilateral Environmental Agreements-2007761

United Nations Environment Programme
Compliance Mechanisms Under

Selected Multilateral Environmental
Agreements
Compliance Mechanism under Selected Multilateral Environmental Agreements
ISBN: 978-92-807-2806-4
Job Number: DEL/0931/NA
Produced by the UNEP Division of Environmental Law and Conventions

Director of Publication: Bakary Kante
Writers/Project Coordinators: Professor Gregory Rose, Mr. Lal Kurukulasuriya,
Ms. Amanthy Perera and Mr. Martin Krebs
Cover Design: Division of Communication and Public Information, UNEP
Design and Layout: UNON/Publishing Section Services/Nairobi; Paul Odhiambo
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Acknowledgments
T his report was prepared by Professor Gregory Rose, Faculty of Law, University of
Wollongong, NSW Australia (grose@uow.edu.au) in collaboration with Mr. Lal
Kurukulasuriya, Director-General of the Centre for Environmental Research, Training and
Information (and former Senior Advisor and Chief of the Environmental Law Branch of
the Division of Policy Development and Law of UNEP) (lalkuru@eureka.lk). Ms. Amanthy
Perera provided editorial assistance.
Tables
Table 3.1 – Overview of MEA Compliance Frameworks
Table 3.2 – Performance Review Information
Table 3.3 – Multilateral Non-Compliance Response Procedures
Table 3.4 – Implementation Assistance
Table 3.5 – Non-Compliance Penalties
Table 3.6 – Dispute Resolution Procedures
Table 4.1 – Implementation Cooperation between MEA Secretariats
Figures
Figure 1 – Information Cycle
Abbreviations
Basel Convention Basel Convention on the Control of Transboundary Movements
of Hazardous Wastes and their Disposal 1989
Biosafety Protocol Cartagena Protocol on Biosafety to the Convention on Biological
Diversity of 5 June 1992 2000
CBD Convention on Biological Diversity 1992
CITES Convention on International Trade in Endangered Species of Wild
Fauna and Flora1973
CMS Convention on the Conservation of Migratory Species of Wild
Animals 1979
COP Conference of Parties
DNA Designated National Authority
EEZ Exclusive Economic Zone
FAO UN Food and Agriculture Organisation
Fish Stocks Agreement Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982
relating to the Conservation and Management of Straddling Fish
Stocks and Highly Migratory Fish Stocks 1995
GEF Global Environment Facility
ITPGRFA International Treaty on Plant Genetic Resources for Food and
Agriculture 2001
Kyoto Protocol Kyoto Protocol to the United Nations Framework Convention on
Climate Change 1997
LMO Living Modified Organism
• Prelimin a ries
London Convention Convention on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter 1972
MARPOL International Convention for the Prevention of Pollution
from Ships 1973
MEA Multilateral Environmental Agreement
Montreal Protocol Montreal Protocol on Substances that Deplete the Ozone
Layer 1987
MOP Meeting of Parties
MOU Memorandum of Understanding
NCP Non-Compliance Procedure
ODS Ozone Depleting Substances
PIC Prior Informed Consent
PIC Convention Rotterdam Convention on the Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides
in International Trade 1998
POPs Persistent Organic Pollutants
POPs Convention Stockholm Convention on Persistent Organic Pollutants
2001
Ramsar Convention Convention on Wetlands of International Importance espe-
cially as Waterfowl Habitat 1971
TRAFFIC Trade Records Analysis of Flora and Fauna in International
Commerce
UNCCD United Nations Convention to Combat Desertification
in those Countries Experiencing Serious Drought and/or
Desertification, particularly in Africa 1994
UNCED United Nations Conference on Environment and
Development
UNCLOS United Nations Convention of the Law of the Sea 1982
UNDP United Nations Development Programme
UNEP United Nations Environment Programme
UNFCCC United Nations Framework Convention on Climate Change
1992
UNU United Nations University
Vienna Convention Vienna Convention for the Protection of the Ozone Layer
1985
WCMC World Conservation Monitoring Centre
WCO World Customs Organisation
Whaling Convention International Convention for the Regulation of Whaling
1946
World Heritage Convention Convention for the Protection of World Cultural and Natural
Heritage 1972
WWF World Wildlife Fund
Co m pl ia n ce M ech an i s m s U n d e r S e l ect e d Mult i l at er a l E nvironmen ta l Agreemen t s

Table of Contents
Acknowledgements..................................................................................................... 3
Tables.......................................................................................................................... 3
Figures......................................................................................................................... 3
Abbreviations.............................................................................................................. 3
Executive Summary..................................................................................................... 9
Comparative Compliance Mechanisms....................................................................... 9

(a) Performance Review Information................................................................. 9
(b) Multilateral Procedures to Consider Non-Compliance............................... 10
(c) Non-Compliance Response Measures........................................................ 11
(d) Dispute Settlement..................................................................................... 12
Compliance Interlinkages.......................................................................................... 13
Chapter I. Introduction....................................................................................15
Objectives................................................................................................................. 17
Background............................................................................................................... 17
Methodology............................................................................................................. 18
Definitions................................................................................................................. 19
Scope........................................................................................................................ 22
Chapter II Compliance Mechanisms Of Major Global Meas...........................25

Major Global Meas.................................................................................................... 27
Identifying Components Of Compliance Mechanisms of Meas.................................. 29
(a) Performance Review Information............................................................... 29
(b) Multilateral Non-Compliance Procedures.................................................. 31
(c) Non-Compliance Response Measures........................................................ 31
(d) Dispute Resolution.................................................................................... 33
1. Nature Conservation............................................................................................. 34
Ramsar Convention on Wetlands of International Importance especially as
Waterfowl Habitat 1971................................................................................. 34
Overview.................................................................................................. 34
Compliance mechanisms........................................................................... 34
Convention Concerning the Protection of the World Cultural and Natural
Heritage 1972................................................................................................. 37
Overview.................................................................................................. 37
Convention on International Trade in Endangered Species of Wild Flora
and Fauna 1973 (CITES).................................................................................. 40
Overview.................................................................................................. 40
Convention on the Conservation of Migratory Species of Wild Animals
1979............................................................................................................... 44
Overview.................................................................................................. 44
• Prelimin aries
Convention on Biological Diversity 1992....................................................... 47
Overview.................................................................................................. 47
United Nations Convention to Combat Desertification in those Countries
Experiencing Serious Drought and/or Desertification, Particularly in
Africa 1994..................................................................................................... 50
Overview.................................................................................................. 50
International Treaty on Plant Genetic Resources for Food and Agriculture
2001............................................................................................................... 53
Overview.................................................................................................. 53
2. Hazardous Materials............................................................................................. 56
Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal 1989..................................................................... 56
Overview.................................................................................................. 56
Compliance Mechanisms.......................................................................... 58
Rotterdam Convention On The Prior Informed Consent Procedure For Certain
Hazardous Chemicals And Pesticides In International Trade......................... 62
Overview.................................................................................................. 62
Cartagena Protocol on Biosafety to the CBD 2000.......................................... 65
Overview.................................................................................................. 65
Stockholm Convention on Persistent Organic Pollutants 2001........................ 68
Overview.................................................................................................. 68
3. Atmosphere........................................................................................................... 71
Vienna Convention for the Protection of the Ozone Layer 1985..................... 71
Overview.................................................................................................. 71
Montreal Protocol on Substances that Deplete the Ozone Layer 1987........... 74
Overview.................................................................................................. 74
United Nations Framework Convention on Climate Change 1992.................. 77
Overview.................................................................................................. 77
Kyoto Protocol to the United Nations Framework Convention on Climate
Change 1997.................................................................................................. 81
Overview.................................................................................................. 81
4. Marine.................................................................................................................. 86
International Convention for the Regulation of Whaling 1946........................ 86
Overview.................................................................................................. 86
London Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter 1972....................................................................... 89
Overview.................................................................................................. 89
Compliance Mechamisms......................................................................... 89
United Nations Convention On The Law Of The Sea 1982............................ 91

Overview.................................................................................................. 91
Co mp l ia n ce M e ch an i s m s U n d e r S e l ect e d Mu lti l ater a l E nvironmen ta l Agreemen t s

Agreement for the Implementation of the Provisions of the United Nations
Convention on the Law of the Sea of 10 December 1982 Relating to the
Conservation and Management of Straddling Fish Stocks and Highly
Migratory Fish Stocks 1995............................................................................. 96
Overview.................................................................................................. 96
Chapter Iii. Comparative Analysis.................................................................101

Overview................................................................................................................. 103
Table 3.1. Overview Of MEA Compliance Frameworks.......................................... 104
National Performance Information........................................................................... 105
Table 3.2. Performance Review Information............................................................ 108
Multilateral Non-Compliance Response Procedures................................................ 110
Table 3.3. Multilateral Non-compliance Response Procedures................................ 112
Non-Compliance Response Measures...................................................................... 113
Implementation Assistance...................................................................................... 113
Table 3.4. Implementation Assistance..................................................................... 115
Non-compliance Penalties....................................................................................... 117
Table 3.5. Non-Compliance Penalties..................................................................... 117
Dispute Resolution Procedures................................................................................ 119
Table 3.6 Dispute Resolution Procedures................................................................ 120
Chapter IV. Synthesis and Analysis of Law and Practice................................123

International Efforts Towards Interlinkages In Compliance....................................... 125
International Organisations...................................................................................... 125
Mea Secretariats...................................................................................................... 128
1. Nature Conservation............................................................................................ 129
2. Hazardous Substances Management................................................................... 132
3. Atmospheric Emissions Control........................................................................... 133
4. Marine Environment Protection........................................................................... 135
TABLE 4.1: Implementation Cooperation between MEA Secretariats....................... 136
5. National Efforts Supporting Interlinkages In Compliance..................................... 137
• Prelimin aries
Co mp l ia n ce M e ch an i s m s U n d e r S e l ect e d Mu lti l ater a l E nvironmen ta l Agreemen t s
Executive Summary
T his report seeks to perform a comparative analysis of compliance mechanisms under

selected multilateral environment agreements (MEAs). Nineteen MEAs were selected
on the basis of their being global in scope, widely ratified and representative of treaty
arrangements across environmental management sectors. In order to proceed further, it
was first necessary to define compliance mechanisms.
Definition of compliance mechanisms is less straight-forward than might be expected

as there is no existing authoritative set of definitions. Fine distinctions need to be drawn
between implementation and compliance, between international and domestic compli-
ance mechanisms, between performance information and environmental baseline data,
between verification and monitoring missions, between primary implementation assis-
tance and non-compliance response assistance, and between penalties and compensation
liabilities.
Compliance mechanisms are defined in this report under four headings:

1. A requirement for information reviewing national performance of MEA
obligations (‘performance review information’);
2. Institutionalized multilateral procedures to consider apparent instances of non-
compliance (‘multilateral non-compliance procedures’);
3. Multilateral measures adopted to respond to non-compliance (‘non-compliance
response measures’); and
4. Dispute settlement procedures.
Comparative Compliance Mechanisms
The 19 MEAs are analysed to identify their compliance mechanisms and to characterise
them according to the four categories above. The comparisons between MEAs and gen-
eral observations are made within each of those four categories. Almost all MEAs con-
tain national performance review information provision requirements and most contain
dispute resolution procedures but only a minority embody non-compliance procedures
(Table 3.1).
(a) Performance Review Information
The most common MEA compliance mechanism and the one on which the major-
ity of international studies and capacity building efforts focus is performance review
information. Although scientific and technical data concerning environmental baselines
and quality changes can feed into performance review information, it does not in itself
assess national responses to international obligations. (Environmental changes may occur
despite, or irrespective of, national environmental measures.) Similarly, data concerning
• Prelimin aries
operational information exchanges can be fed into performance review information, but
such exchanges do not in themselves review performance (Figure 1).
Performance review information is gathered primarily through national self-reporting but a

few MEAs also provide for supplementary third-party verification or monitoring (Table 3.2).
Almost all MEAs require Parties to self-report on their national performance. The major-
ity of those MEAs provide guidelines or templates for this purpose. Just less than a third
of those provide for verification of data in national reports or for third-party monitoring
of national reporting systems. Among the five MEAs surveyed that regulate international
transactions, the two most recent do not require Parties to report the details of regulated
transactions, an omission that generates gaps in the available performance information for
those treaties.
Potential interlinkages in performance review information gathering arise between MEAs

regulating closely related activities. In relation to self-reporting, the interlinkages can be
created by harmonization of reporting formats and joint MEA reporting by a Party. For
example, where MEAs regulate overlapping sites, species, substances or emissions, there
is heightened potential for coordination. This performance review information will be most
useful across MEAs when review requires the provision of statistical, transactional or other
quantifiable data, rather than qualitative descriptive evaluations. The latter are typically
more related to descriptions of policy measures that are customised to particular MEAs
and may also be less factually objective.
Research work on harmonization of performance reporting formats across MEAs has

been undertaken by international organisations for a decade, particularly by the World
Conservation Monitoring Centre concerning biodiversity-related treaties and by the United
Nations University. The secretariats of several Rio and biodiversity-related MEAs engage in
regular meetings to examine opportunities for coordination.
However, to date, the research effort has focused on the biodiversity-related cluster of
MEAs. It has produced proposals for harmonisation that include the development of
information system models that would explore synergies during the various steps in the
data collection and dissemination process, particularly through modular or consolidated
reporting for the biodiversity-related MEAs. Also suggested to enhance performance
review information delivery in relation to the biodiversity-related MEAs are: harmonising
document cover sheets; adopting standard definitions; harmonising web sites; developing
a meta-database to indicate the information that is available and its location; and develop-
ing an inter-convention web site and search engine, as well as a lessons-learned network
to encourage the sharing of experience.
In relation to monitoring and verification, potential interlinkages exist in carrying out third-
party monitoring operations and verification missions. Thus, a verification mission might
be multi-tasked to assess aspects of compliance common to several MEAs.
(b) Multilateral Procedures to Consider Non-Compliance
Multilateral non-compliance procedures (NCPs) must be distinguished from traditional
dispute resolution procedures, which are invoked only once sufficient damage has been
10 Co m pl ia n ce M ech an i s m s U n d e r S e l ect e d Mult i l at er a l E nvironmen ta l Agreemen t s

done to the legal order for a conflict to arise. The purpose of such NCPs is to identify
Parties’ compliance difficulties and to facilitate better compliance in a non-adversarial
manner.
Most MEAs have established or are in the process of developing a formal NCP (Table 3.3).
They occur frequently under MEAs in the hazardous materials and biodiversity sectors
and are most common for those concerning the atmospheric commons. In stark contrast,
there are none in the marine sector. Although most of NCPs established set up an elected
Implementation Committee or Compliance Committee to make recommendations, the
final output is a decision by the Conference of the Parties (COP). A suggestion that a Party
is non-compliant can usually be brought to the attention of an NCP administering body
by the MEA secretariat, by the Party itself experiencing compliance difficulties or by other
Parties, or, under a few MEAs, by a third-party body performing a monitoring role.
Potential for interlinkages between NCPs is slight as each is specific to the sensitive bal-
ance struck during its negotiation processes. However, closer coordination between MEA
secretariats could enhance their capacity to trigger NCPs. Protocols for coordination of
performance information between secretariats could enable them to be more effective in
triggering their respective NCPs. Such coordination would be likely to be useful across
MEAs within a cluster but could also be useful across MEAs that regulate related activities,
such as international trade. For example, evidence of corruption of customs authorities
indicating a Party’s non-compliance concerning its trade-related obligations might impli-
cate that Party in similar non-compliance under more than one MEA.
(c) Non-Compliance Response Measures

Response measures can be classified into two categories: incentives - technical and finan-
cial assistance to support improved implementation; and disincentives - penalties such as
stricter requirements for performance review information.
Incentives include enhanced international cooperation with the non-compliant Party in

support of implementation, such as the supply of technical or financial assistance. This
priority assistance is referred to here as ‘non-compliance response assistance’ and must be
distinguished from implementation assistance. Implementation assistance under an MEA is
normally available at earlier stages in the implementation cycle, rather than as a response
to non-compliance.
All of the MEAs surveyed in this paper provide some measure of basic implementation
assistance to Parties that may need it at those earlier stages, always in the form of techni-
cal assistance and usually also as financial assistance (Table 3.4). A minority of the MEAs
also specifically set out assistance as a non-compliance response measure. Where they do
so, two provide that it is conditional on demonstration of the Party’s adopting a national
compliance action plan.
Disincentives to continued non-compliance can be imposed in less than a quarter of the

MEAs surveyed (Table 3.5). The disincentives include requirements for additional ‘non-
compliance response information’ or the imposition of warnings or penalties. The latter
• Prelimin aries 11
comprise additional obligations, suspension of privileges, trade sanctions and liabilities.
Trade sanctions occur under only three of the MEAs. Liability to undertake more onerous
burdens in meeting the MEA obligations can be imposed under the Kyoto Protocol. Such
liability must be distinguished from compensation liability that is determined between
Parties bilaterally through an arbitral process, such as a dispute resolution procedure. Only
the Basel Convention Liability Protocol defines liability to compensate and this is not truly
part of a multilateral NCP in any MEA.
Interlinkages across MEAs of considerations specific to a particular non-compliant Party

in selection of response measures during NCP decision-making processes could maximise
the effect of non-compliance responses for the non-compliant Party. Thus, the coordination
of implementation assistance across MEAs to address recurrent non-compliance caused by
a systemic lack of a particular environmental management capacity would be more effec-
tive than piecemeal or duplicative implementation assistance. Non-compliance response
assistance measures could be easier to coordinate across MEAs than general implementa-
tion assistance measures because they are nominated as priorities through NCPs and are
fewer in number than general requests for assistance. Similarly, the coordinated imposition
of penalties against a serially non-compliant Party would have greater deterrent impact
than ad hoc penalties. Coordination would be likely to be useful across MEAs within a
cluster but could also be useful across MEAs that regulate common activities, such as
international trade in or manufacturing of particular products.
(d) Dispute Settlement

MEA dispute resolution mechanisms are grouped in three clusters of compulsory pro-
cedures: negotiation, conciliation and arbitration. They may be conceived of as varying
across a range of sophistication, from simple provisions that require Parties to voluntarily
negotiate bilaterally in good faith to compulsory binding third-party dispute resolution
procedures.
All but four MEAs have provisions on settling disputes between Parties (Table 3.6). With the
exception of the dispute resolution procedures of UNCLOS and the Fish Stocks Agreement,
MEA dispute resolutions procedures tend not to include compulsory binding procedures.
Instead, they often comprise bilateral negotiation, compulsory conciliation and voluntary
arbitration. Compulsory conciliation is invoked following the failure of negotiations, when
one Party requests it, but it does not culminate in a binding determination. Disinclination
to submit to the binding decisions produced by the dispute resolution procedures of arbi-
tral or judicial tribunals could be the consequence of their adversarial nature and unpre-
dictable and potentially expensive consequences. The trend towards use of multilateral
NCPs, as opposed to adversarial dispute settlement procedures, seems to herald a focus on
managing political relationships so as maintain the viability and integrity of MEAs.
Potential linkages are feasible in respect of common dispute resolution bodies, particu-
larly within clusters, which could specify within their respective conciliation or arbitration
annexes the nomination of standing panels of experts. However, this may rarely be of
utility as there appears to be widespread avoidance of resort to third-party dispute resolu-
tion.
12 Co mp l ia n ce M e ch an i s m s U n d e r S e l ect e d Mu lti l ater a l E nvironmen ta l Agreemen t s

Compliance Interlinkages
The greatest concentration of existing interlinkages between international compliance

systems occurs between the biodiversity-related MEAs, other than the UNCCD (Table 4.1).
Their compliance system interlinkages concern performance review information. In this
connection, as noted above, harmonisation of information requirements is being explored.
Interconnectivity between their respective websites and implementation assistance clear-
ing-houses is gradually being introduced.
It is noteworthy that the biodiversity-related MEAs also enjoy the greatest concentration of
interlinkages for general implementation. Other areas of concentrated MEA interlinkages
concerning general implementation occur within clusters, i.e. the hazardous substances
and atmosphere clusters, with the notable exception of the marine cluster. There is also
a relatively high level of implementation interlinkage between the biodiversity-related
and atmosphere-related clusters, comprising the only significant area of interlinkages that
extend across clusters.
The success of interlinkages between MEA compliance mechanisms at the international

level relies largely on the effectiveness of interlinkages in implementation across MEAs
at the national level. In relation to take-up at the national level, capacity-building to
enhance interlinkages in national implementation of MEAs is being delivered by some
intergovernmental organisations, such as UNDP, UNEP and WCO. Several international
organisations that are partly non-governmental also seek to build implementation capacity.
The most significant of these is the International Network for Environmental Compliance
and Enforcement (INECE), which has developed a set of environmental compliance and
enforcement (ECE) indicators for assessing domestic program performance.
Such capacity building seeks to enhance national systems for domestic implementation
of individual MEAs and, to a lesser extent, to build domestic interlinkages between them.
However, the UNU has conducted national case studies of institutional coordination
in relation to the implementation of MEAs that touch specifically upon interlinkages in
domestic implementation. A brief survey of national implementation data suggests that,
except for countries in North America and Europe, domestic interlinkages in imple-
mentation across MEAs are at very early stages of development and mostly concern the
establishment of integrated environmental monitoring databases rather than integration of
performance information.
• Prelimin a ries 13
CH I
Chapter I.
Introduction
In t rod uct ion 15

16 Co m pl ia nc e M ec h an i s m s U n d e r S e l ect e d Mu lt i l ater a l E nvironmen ta l Agreemen t s
Introduction
CH I
Objectives
This report investigates compliance mechanisms under selected multilateral environment

agreements (MEAs). It seeks to contribute to UNEP’s work on implementation mechanisms
for international instruments. It does so specifically by identifying strategic opportunities
for interlinkages and synergies in compliance mechanisms among MEAs.
First, the report defines compliance mechanisms and the scope of those covered. Then it
analyses the components of compliance mechanisms and compares them, with particular
focus upon components involving reporting and verification procedures. Third, law and
practice in the implementation of compliance mechanisms is analysed to identify les-
sons that can be learned. Then conclusions are drawn as to the opportunities to enhance
synergies in compliance mechanisms among MEAs. Finally, a draft action plan is recom-
mended.
Background
The mandate for this investigation has its roots in Chapter 39 of Agenda 21, which
called upon United Nations Members States to undertake activities to promote the full
and prompt implementation of international agreements (Implementation mechanisms
- Activity B Para. 39.7). It suggested that States could:
(a) Establish efficient and practical reporting systems on the effective, full and
prompt implementation of international legal instruments; [and]
(b) Consider appropriate ways in which relevant international bodies, such as
UNEP, might contribute towards the further development of such mechanisms.
To this end, UNEP has undertaken activities to promote the implementation of MEAs,
focusing on strengthening the rule of environmental law. Outcomes of particular note
include:
n The Malmo Declaration, Sweden, 29-31 May 2000, which provided that,
whilst the evolving framework of international environmental law and the
development of national law provide a sound basis for addressing the major
environmental threats of the day, they must be underpinned by a more coherent
and coordinated approach among international environmental instruments,
including in environmental compliance (Para. 3);
• I n trod uct ion 17

n The Programme for the Development and Periodic Review of Environmental
Law for the First Decade of the 21st Century (Montevideo Programme III),
that was adopted by Governing Council decision 21/23 to serve as a strategic
CH I
framework for all UNEP environmental law activities in the present decade.
Inter alia, it addresses the role of the judiciary in the context of capacity
building for the implementation of environmental law;
n The adoption of Guidelines on Compliance with and Enforcement of

Multilateral Environmental Agreements by the Seventh Special Session of the
UNEP Governing Council, Cartagena, Colombia 13-15 February 2002;
n The Global Judges Symposium on Sustainable Development and the Role of

Law, Johannesburg, 18-20 August 2002, that addressed building the capacity of
judges to ensure the implementation of environmental laws. This Symposium
was supported by a wide range of preparatory regional judicial symposia. It was
followed by the Judges Ad Hoc Meeting for the Development of a Plan of Work
as a Follow-Up to the Global Judges Symposium Relating to Capacity Building
of Judges, Prosecutors, and Other Legal Stakeholders, Nairobi, 30-31 January
2003, and endorsed in UNEP Governing Council decision 22/17 II A on the
Follow-up to the Global Judges Symposium; and
n The Round Table Dialogue on Advancing the Millennium Development Goals

through the Rule of Law, held at UNEP Headquarters, Nairobi, on 16-17
February 2005.
Within UNEP, efforts to enhance synergies across MEAs are reflected in its organisational
structure.
Methodology
The essential method adopted in this report is comparative. That is, it compares compli-
ance mechanisms across MEAs.
Initially, data is gathered, analysed and compared. The first step is to select MEAs, analyse
each compliance mechanism into its components, categorise them and describe them by
categories.1 The second step is to compare the components by category across MEAs. This
task includes survey of the academic, governmental and inter-governmental literature for
1
The methodology of categorization of MEAs and their classification under different headers in this study is with the authors and
does not necessarily correspond with the categorization and classification of MEAs usually chosen by UNEP

information concerning the operational qualities of particular MEA compliance mecha-
nisms.
Then qualitative studies are undertaken. This entails the third and fourth steps in the meth-
CH I
odology, i.e., case studies of available regional and national law to discern the qualities
of State practice in implementing MEA compliance mechanisms and a literature survey of
MEA compliance linkages and synergies.
Finally, the comparative data and qualitative information will be synthesised to draw
conclusions about the nature and location of opportunities for interlinkages and synergies
between MEA compliance mechanisms.
Definitions
The approach to terminology used here is consistent with the emerging standard usage,
as indicated in UNEP’s Guidelines on Compliance with and Enforcement of Multilateral
Environmental Agreements (UNEP Guidelines).
The term ‘compliance’ is part of a range of terminology used to describe patterns of confor-
mity with legal norms. It is to be distinguished from related terms, such as ‘effectiveness’,
‘enforcement’ and ‘implementation’.
Compliance
The UNEP Guidelines are divided into two parts: Part I - Guidelines for Enhancing
Compliance with Multilateral Environmental Agreements and Part II - Guidelines for
National Enforcement, and International Cooperation in Combating Violations of Laws
Implementing Multilateral Environmental Agreements. In essence, Part I addresses compli-
ance primarily from an international perspective, concerning the design of MEA regimes,
although they also consider national legal regimes to enhance compliance. In contrast, Part
II addresses the strengthening of national enforcement capacity. Part I is the more closely
related to compliance interlinkages and synergies between MEAs because it focuses on
compliance regimes and primarily on the international process. It defines compliance as
‘the fulfilment by the contracting Parties of their obligations under a multilateral environ-
mental agreement and any amendments to the multilateral environmental agreement’.
This is the basic definition of compliance that is applied in this report. However, it should
be observed that compliance is not an ‘all or nothing’ game. The fact that a Party is not
Ronald Mitchell ‘Compliance Theory: An Overview’ in James Cameron, Werksman J. and Roderick, P., Improving Compliance with
International Environmental Law (Earthscan London 1996) p. 24.
UNEP Guidelines on Compliance with and Enforcement of Multilateral Environment Agreements (Nairobi 2002) Part I, p 2. It should be
noted that the UNEP Guidelines Part II define compliance from a domestic perspective as ‘the state of conformity with obligations,
imposed by a state, its competent authorities and agencies on the regulated community, whether directly or indirectly through
conditions and requirements, licences and authorizations, in implementing multilateral environmental agreements’. , p. 8
• IIn
nttrod
rod uct ion 19
fully compliant does not mean that it is fully non-compliant. Despite the binary nature of
the language used, compliance occurs across a scale of shades of grey.
CH I
Compliance Mechanisms
Compliance mechanisms are the systems adopted under MEAs to promote compliance.
The components of compliance mechanisms can be analysed into four categories: (a)
performance information; (b) multilateral institutional procedures; (c) non-compliance
response measures; and (d) dispute settlement procedures. These are described at greater
length in Chapter II.
Effectiveness
Concern to assess progress towards a variety of goals in international environmental gov-

ernance has resulted in a multiplicity of meanings for ‘effectiveness’. Effectiveness can,
for example, relate to such goals as environmental problem solving, economic efficiency
and desired changes in political behaviour. At times, however, effectiveness is confused
with compliance. This occurs when what is assessed is progress to congruence with legal
norms. For the purposes of this report it is important to distinguish compliance from effec-
tiveness. Thus, the progress that effectiveness is taken to assess in this report is progress
towards goals that concern environmental problem solving and changes in political behav-
iour. Thus, a statement of effectiveness entails measurement of environmental or social
change over time generated by the MEA. It requires, first, proof of a causal link from the
MEA to the measured change. It also requires an assessment of the relative success of the
regime in solving the environmental problem that it was designed to address. The latter
evaluation is possible in some cases, where the aims and objectives of the MEA are stated
with precision to define quantifiable outcomes and impacts. Nevertheless, the process can
be accused of being subjective when the aims and objectives of the MEA are not.
Enforcement
Part II of the UNEP Guidelines define enforcement as
‘the range of procedures and actions employed by a State, its competent authorities and
agencies to ensure that organisations or persons, potentially failing to comply with envi-
ronmental laws or regulations implementing multilateral environmental agreements, can
be brought or returned into compliance and/or punished through civil administrative or
criminal action’.
Harold K. Jacobsen and Brown Weiss, E. ‘A Framework for Analysis’ in Engaging Countries- Strengthening Compliance with International
Environmental Accords (MIT Press 1998), p. 2.
Oran Young The Effectiveness of International Environmental Regimes (MIT Press Massachusetts 1998), p 3-6.
Ronald Mitchell ‘Compliance Theory: An Overview’ in James Cameron, Werksman J. and Roderick, P., Improving Compliance with
International Environmental Law (Earthscan London 1996), p. 24.
UNEP Guidelines on Compliance with and Enforcement of Multilateral Environment Agreements (Nairobi 2002) Part I, p. 9.

Thus, the meaning of enforcement as set out in the UNEP Guidelines is the ensuring of
conformity with national laws that implement MEAs. That is the meaning as applied in
this report also.
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Implementation
A State is said to implement an international norm at the domestic level when it adopts
appropriate domestic measures for the purpose of meeting its obligations under the inter-
national treaty norm. Such measures might include enacting legislation, formulating poli-
cies or allocating resources. The UNEP Guidelines Part I define implementation as
‘inter alia, all relevant laws, regulations, policies, and other measures and initiatives that
contracting Parties take or adopt and/or take to meet their obligations under a multilateral
environmental agreement and its amendments, if any’ (sic).
The mere fact that an implementation measure is taken does not mean that it is adequate
to meet a treaty obligation nor that the State is necessarily compliant with its obligation.
Implementation is said to occur in three phases: first, by adopting national legal measures;
second, by enforcing them; and third, by reporting on the implementation measures. The
latter, reporting, is an obligation that also forms part of an MEA’s compliance mechanism.
It is dealt with below in greater detail in the context of compliance mechanisms.
Interlinkages
Interlinking in the context of separate compliance mechanisms of individual MEAs is the

construction of relationships between them. The nature of these relationships will usu-
ally take the form of coordination of inputs and outputs, such as compliance information
inputs and assistance outputs. To identify coordination opportunities requires an analysis
and understanding of the various elements of compliance mechanisms of MEAs. The
elements are identified with the objective of generating synergies between them. Thus,
identification of opportunities to construct interlinkages is the preliminary conceptual
groundwork necessary to achieve synergies.
Monitoring
Monitoring can refer to scientific and technical monitoring of environmental conditions or

to performance monitoring of implementation of MEA obligations. Scientific and technical
monitoring is undertaken by bodies that are often independent of but work in cooperation
with the MEA Parties and secretariat. However, the type of monitoring that is the focus of
this paper is that of national performance in implementing MEA obligations. Performance
monitoring may address a Party’s establishment of systems to implement the MEA but does
not involve review of accuracy of particular data.
UNEP Guidelines on Compliance with and Enforcement of Multilateral Environment Agreements (Nairobi 2002) Part I, p 2.
Philippe Sands Principles of International Environmental Law (2nd edn) (Cambridge University Press 2003) p. 174.
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Multilateral Environmental Agreements (MEAs)
For the purpose of this study, MEAs are treaties that are open to universal participation by
States. Often, MEAs articulate objectives in addition to specific obligations. The objectives
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usually concern an MEA’s intended broad effect on the environment or society. They are
relevant to a study of the MEA’s effectiveness but less relevant to a review of compliance.
For the purposes of clarity in a compliance review, it is helpful to refer to obligations
individually, i.e. as set out in particular treaty provisions, rather than to compliance with a
treaty overall as the latter involves an implicit generalisation.10 The methodology for selec-
tion of particular MEAs for analysis is set out in Chapter 2.
Synergies
Synergy is described in the Oxford Dictionary as ‘Interaction or cooperation of two or more

organisations ... to produce a combined effect that is greater than the sum of their separate
effects.’11 As applied to the study of compliance mechanisms of MEAs, synergy refers to
the production of greater effectiveness and efficiency in effects than the MEA compli-
ance mechanisms can achieve separately. For example, greater effects might be achieved
through complementarity and mutual reinforcement. The complementarity and mutual
reinforcement are the products of appropriate linkages between the separate compliance
mechanisms of MEAs. Thus, synergy is the output of interlinkages between MEAs.
Verification
Verification is a process undertaken to test the accuracy of data or information provided

by a Party to the MEA Secretariat. The process is undertaken by a third Party, such as the
Secretariat or an NGO, or by them in combination with other Parties to the treaty.
Scope
This report studies interlinkages and synergies in major global MEAs. The MEAs that
are surveyed here are exclusively global. There are several pragmatic reasons for this
approach.
First, conferences of Parties and secretariats to global MEAs address relatively similar com-
pliance regimes, resources and challenges. This creates likely opportunities for interlink-
ages between various global MEAs at the international institutional level.
Second, there is a high degree of overlap between the Parties to global MEAs. This is simply
because they are intended to be universal and often are very widely ratified. Consequently,
10 Ronald Mitchell ‘Compliance Theory: An Overview’ in James Cameron, Werksman J. and Roderick, P., Improving Compliance with
International Environmental Law (Earthscan London 1996), p. 5-6.
11 Concise Oxford Dictionary 10th edn OUP 1999

there are relatively rich opportunities for interlinkages between various global MEAs at the
multilateral and national levels.
Third, the circumstances to which regional environmental treaties apply are more diverse
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than those for global MEAs. Many of them are unconnected with UNEP. The conferences
of Parties and secretariats that serve regional environmental treaties sometimes serve sev-
eral treaties for the same region and, therefore, share very similar compliance regimes,
resources and challenges. Parties to regional environmental treaties are typically also
Parties to other environmental treaties for the same region. This suggests that there are very
likely to be potential interlinkages between environmental treaties for a particular region
and that these can be conveniently examined as distinct regional groups.
Interlinkages between regional environmental treaties and global MEAs addressing similar
subjects certainly do exist. As a separate further exercise, the opportunities for interlink-
ages between subject-related global, regional and bilateral MEAs deserve examination.
However, that task can be distinguished from the examination of interlinkages between
global MEAs. Due to the number and diversity of bilateral and regional MEAs (there are
many more regional environmental treaties than global MEAs), they are beyond the practi-
cal resources available for the current exercise.
Compliance mechanisms are the subject of this report. Although compliance mechanisms
seek to achieve national implementation and enforcement of MEAs, so as to promote the
international effectiveness of MEAs, implementation enforcement and effectiveness issues
are not the subjects of examination here. ‘Compliance’, ‘Enforcement’ and ‘Effectiveness’
are defined and distinguished in the ‘Definitions’ section above.
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Chapter II.
Compliance
mechanisms of major
global MEAs
• Compliance mec h ani sms

Background of majo r •gCOMPLIANCE
on Compliance lob al MEAs 25
26 MA N U A L O N CMOechanis
Compliance M P L I A N CmEsWUnder Selected
I T H A N D E N F O R C E
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MEAs
al E n vi ronmental Agr eement s
Compliance mechanisms of major global MEAs
This chapter first selects MEAs, in order to analyse each compliance mechanism into its
components, categorise them and describe them. It gathers and analyses data for each
MEA. The data is compared across MEAs in Chapter III.
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Major Global MEAs
The nineteen global MEAs that are examined here are those that are considered ‘major’.
They are so considered because they have entered into force and have a large number of
Parties.
The MEAs are organised for examination into groups that cover common, overlapping or
related subjected matter. For example, those with objectives that concern primarily an
aspect of nature conservation are clustered together. This approach might be contested
because all aspects of the natural environment are inter-related. Further, it might be sug-
gested that interlinkages and synergies between MEAs could be strongly determined by
factors other than their environmental subject matter. For example, factors such as com-
mon servicing by the same United Nations organisation might be a sensible basis for
categorisation. Nevertheless, there is a tendency for MEAs with similar subject matters to
be serviced by the same United Nations body. For example, UNEP services most of the
hazardous substances conventions (concerning waste, persistent organic pollutants and
aspects of genetically modified organisms, although regulated chemicals are administered
jointly with FAO). Ultimately, however, this report also undertakes a comparative analysis
of the MEAs across clusters. Therefore, the issue of clustering of MEAs according to primary
subject matter is not of central importance as it does not predicate the outcome of the
comparative analysis.
This chapter examines compliance mechanisms within four clusters of MEAs: (1) nature
conservation; (2) hazardous substances management; (3) atmospheric emissions controls;
and (4) marine environment protection. The major global MEAs that have been selected
for analysis in the four clusters are set out as follows:
1. Nature Conservation
n Wetlands – Convention on Wetlands of International Importance especially as

Waterfowl Habitat 1971
n Heritage – Convention for the Protection of World Cultural and Natural
Heritage 1972
n Endangered species – Convention on International Trade in Endangered Species
of Wild Fauna and Flora 1973

n Migratory species – Convention on the Conservation of Migratory Species of
Wild Animals 1979
n Biological diversity – Convention on Biological Diversity 1992
n Deserts – United Nations Convention to Combat Desertification in those
Countries Experiencing Serious Drought and/or Desertification, particularly in
Africa 1994
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n Plant genetic resources – International Treaty on Plant Genetic Resources for

Food and Agriculture 2001
2. Hazardous Materials
n Hazardous wastes – Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal 1989
n Dangerous chemicals – Rotterdam Convention on the Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides in International
Trade 1998
n Biosafety – Cartagena Protocol on Biosafety to the Convention on Biological
Diversity of 5 June 1992, 2000
n Persistent organic pollutants – Stockholm Convention on Persistent Organic
Pollutants 2001
3. Atmospheric Emissions
n Ozone layer – Vienna Convention for the Protection of the Ozone Layer 1985
n Ozone depleting substances – Montreal Protocol on Substances that Deplete
the Ozone Layer 1987
n Climate change – United Nations Framework Convention on Climate Change
1992
n Greenhouse gas emissions reductions – Kyoto Protocol to the United Nations
Framework Convention on Climate Change 1997
4. Marine Environment
n Whaling – International Convention for the Regulation of Whaling 1946
n Sea dumping – Convention on the Prevention of Marine Pollution by Dumping
of Wastes and Other Matter 1972
n UNCLOS – United Nations Convention on the Law of the Sea 1982
n Fish Stocks – Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating to the
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Conservation and Management of Straddling Fish Stocks and Highly Migratory
Fish Stocks 1995
Identifying Components of Compliance Mechanisms of MEAs
To compare particular compliance mechanisms across MEAs, it is necessary to first identify

the details of what it is that we wish to compare. Therefore, each compliance mechanism
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is analysed into its detailed components, which are described and categorised.
The components of the compliance mechanisms within each MEA are categorised under
four headings:
(a) Performance review information - requirements for information reviewing
national performance of MEA obligations;
(b) Multilateral non-compliance procedures - institutionalised multilateral
procedures to consider apparent instances of non-compliance;
(c) Non-compliance response measures - multilateral measures adopted to respond
to non-compliance; and
(d) Dispute resolution - dispute settlement procedures.
Many MEAs require their Parties to exchange information as part of their primary opera-
tional obligations. For example, they might be required to provide information on pro-
posed environmentally sensitive trade transactions or industrial developments, on ambient
environmental conditions or on environmental technologies. This operational information
is to be distinguished from MEA requirements for performance review information.
In relation to their performance, Parties are often required to report on the measures they
have taken to implement a particular MEA, usually by submitting annual reports on their
relevant laws or policies. Some MEAs provide for a third Party, such as a Secretariat, to
monitor or verify the performance and require the Parties to cooperate with such monitor-
ing or verification of their performance. Often, operational and performance information
are inter-related, as data from operational information exchanges are fed into performance
review.
A related form of performance review is regime review, which concerns review of the
regime’s performance overall, rather than individual Party performance. For example,
statistical data processed from sources including the Parties’ operational information
exchanges and their performance information can help the Secretariat and the COP to
assess whether targets have been met and to identify future priorities.

Collection of performance review information is necessary to determine a Party’s compli-
ance situation. Therefore, in examining compliance, this report focuses on performance
review information.
Figure 1: Information Cycle

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2. Primary 3. Implementation
Implementation Assistance
(incl. under NCP)
Operational
1. Regime Design
4. Performance
Review (incl. Self and
Baseline Performance 3rd Party)
Information Information
6. Regime Review
5. Non-Compliance
Response Review (incl.
compliance assistance
under NCP)
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(b) Multilateral Non-Compliance Procedures
Most MEAs provide for the development of a formal, multilateral NCP. When devel-
oped, this usually comes in the form of an elected committee, called an Implementation
Committee or Compliance Committee. A Party’s alleged non-compliance may be referred
to the Committee for consideration (or it may, itself, refer its own inability to comply) and
the Committee then makes a recommendation on the matter to the COP. Usually, the final
output is a decision by the COP. The purpose of such procedures is to identify compliance
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difficulties and to facilitate better compliance in a non-adversarial manner. Normally,
reference can be made to the Committee once non-compliance is already an issue, or to
prevent such non-compliance arising. In that respect, multilateral NCPs may be distin-
guished from traditional dispute resolution procedures, which are usually invoked only
once sufficient damage has been done to the legal order for a conflict to arise.
Despite the simple dichotomy in the notions of compliance and non-compliance, per-
formance information will usually indicate a degree of compliance rather than perfect
compliance or absolute non-compliance. A Party may be compliant to a degree, across
a measure of shades of grey. The degree of compliance may in circumstances be so poor
that the Party can be determined to be substantially non-compliant. Substantial failures to
submit national performance information can conceal national non-performance of pri-
mary operational obligations and, therefore, is often treated as a failure to meet a primary
operational obligation.
When an instance of substantial non-compliance is identified under a non-compliance

procedure, a response is necessary at the multilateral level. The response needs to be
tailored to the particular circumstances of the case. Non-compliance usually stems from
lack of human, material and financial resources and/or lack of political will.12 The response
measures available can be classified into two categories: incentives - technical and finan-
cial assistance to support improved implementation; and disincentives - penalties such
stricter requirements for performance review information. These are sometimes referred to
as ‘carrots and sticks’.
(i) Incentives are the usual response and include enhanced international
cooperation with the non-compliant Party in support of implementation, such
as the supply of technical or financial assistance. Thus, a COP might direct
priority financial and technical assistance to a non-compliant Party. This
assistance may be subject to conditions such as the adoption of a national
program of implementation actions. This priority or conditional assistance
is referred to here as ‘non-compliance response assistance’ and must be
distinguished from regular cooperative assistance under the MEA.
12 Montini, M, ‘Improving Compliance with Multilateral Environmental Agreements through Positive Measures: The Case of the Kyoto
Protocol on Climate Change’ in Kiss, A, Shelton, D and Ishibashi, K (eds.), Economic Globalization and Compliance with International
Environmental Agreements (Kluwer Law International, The Hague, 2003), p.159.

Technical assistance includes: capacity-building mechanisms in the form
of training and workshops, which address issues relating to lack of human
resources and know-how; technology transfers and exchange of information
mechanisms to address issues relating to the lack of materials; and financial
provisions to address resource issues.13 (It is noteworthy that information
exchange obligations arise also in the context of technical assistance.) Financial
assistance often comes in the form of a Trust Fund or a financial mechanism
from which the Parties provide funding for relevant projects. One of the most
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important financial mechanisms is the Global Environment Facility (GEF),

which was established in 1991 and provides funding to projects falling within
the categories of biological diversity, climate change, international waters,
ozone layer depletion, land degradation and persistant organic pollutants
(POPs)14. When invoked under a NCP, technical and financial assistance might
be made conditional on demonstration of the Party’s demonstration of bona
fides in redressing the non-compliance failure, such as by adopting domestic
legislation or a national action plan.
(ii) In some cases, disincentives to continued non-compliance can be imposed.

For example, a COP might impose additional, stringent and customised
performance review information obligations on a non-compliant Party and
direct that the information provided be subject to verification. The additional
required information can be termed ‘non-compliance response information’.
These additional reporting requirements must be distinguished from their
regular performance review information counterparts.
Other disincentives to non-compliance are warnings and penalties. The latter

may include additional obligations or suspension of privileges. For example,
a non-compliant Party might be warned that its rights under the MEA regime
could be suspended. The suspension of rights may involve the imposition
of limited trade sanctions, as can occur under the Montreal Protocol on
Substances that Deplete the Ozone Layer and the Kyoto Protocol to the United
Nations Framework Climate Change Convention. Penalties imposed through
the multilateral process of the NCP can be distinguished from compensation
liabilities. The latter can be imposed under the terms of the MEA or a protocol
but often needs to be determined between Parties bilaterally through an arbitral
process or other form of dispute resolution procedure.
Thus, responses to non-compliance vary, from requiring additional reports (non-compli-

ance response information as distinguished from regular performance review information),
to recommending conditional assistance measures (non-compliance response assistance,
13 Ibid p.163.
14 Ibid.
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as distinguished from regular implementation support assistance), to imposition of liabili-
ties and the suspension of a Party’s rights under the convention.
(d) Dispute Resolution
MEA mechanisms to settle disputes can be grouped in three clusters of procedures:

Negotiation, Conciliation and Arbitration.
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Negotiation In the event of a dispute, Parties must submit to negotiation. Thus, there is no
obligation to pursue binding arbitration.
Conciliation Generally, these provisions provide that Parties must submit to negotiation or
other peaceful means as the first port of call. If the dispute is not resolved within a speci-
fied period of time (usually 12 months), Parties must then submit to conciliation in accor-
dance with a procedure that is either annexed to the Convention or to a COP resolution.
The conciliation procedure is not automatically triggered. Thus, once the requisite period
has lapsed, one of the Parties must request it. However, Parties can bypass the conciliation
procedure in favour of arbitration before the International Court of Justice or in accordance
with an arbitration procedure, which, again, is either annexed to the Convention or to a
COP resolution. The arbitration process is not compulsory and can only be invoked where
both Parties have notified the Secretariat that they accept this means of dispute resolu-
tion.
Arbitration Unlike conciliation, arbitration is binding. In marked contrast to the weak dis-
pute resolution procedures described above, which avoid imposing compulsory, binding
arbitration on Parties, UNCLOS sits in a category of its own. It has compulsory, binding
arbitration for specific disputes (i.e. disputes concerning the sea-bed). Generally, however,
the arbitration procedure is invoked if the dispute has not been resolved through negotia-
tion. Conciliation is an option where negotiations fail, but is invoked only if one Party
requests it and the other accepts the invitation. Otherwise, Parties have the right to invoke
to compulsory arbitration procedures and the forum in which the proceedings are to take
place.
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ompliance mec h ani sms
Background of majo
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on Compliancer •gCOMPLIANCE
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Ramsar Convention on Wetlands of International Importance

especially as Waterfowl Habitat 1971
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Overview
The Ramsar Convention on Wetlands of International Importance especially as Waterfowl

Habitat (the Ramsar Convention) entered into force on 21 December 1975. It provides
that Parties must designate at least one wetland to be included in the ‘List of Wetlands of
International Importance’, which should be selected according to its international signifi-
cance in terms of ecology, botany, zoology, limnology or hydrology.15 Parties have a duty
to promote the conservation of listed wetlands.16 However, Parties are also obliged to pro-
mote the conservation of wetlands and waterfowl by establishing nature reserves on wet-
lands regardless of whether those wetlands are included on ‘The Ramsar List’ or not.17
Compliance mechanisms
National Reports on the implementation of the Convention were presented at COP 1

(1980) at the invitation of the Bureau. COP 2 (1984) recommended that all Parties submit
reports to the Bureau six months before each ordinary COP.18 The Ramsar Bureau also
conducts on-site monitoring to review implementation.19
Performance review information is supplemented by the wetlands inventory program. In

Resolution VII.20, the Parties recognised the importance of developing a national inven-
tory of wetlands.20 The resolution urged Parties to give the highest priority to the task of
completing a comprehensive wetland inventory. The Framework for Wetland Inventory
was developed in response to Resolution VII.20 to provide guidance on developing a
wetland inventory program and in conducting associated identification, monitoring and
implementation activities.
15 World Heritage Convention, Article 2.

18 Ramsar Recommendations 2.1 and 4.3.
19 Vol. 11(2) Review of European Community and International Environmental Law, 2002, p.183.
20 Ramsar Website, <http://www.ramsar.org/key_guide_inventory_e.htm> (7/10/05).
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The Montreux Record was established at COP 4 (1990) and formalised at COP 5 (1993).21
The Record focuses attention on threatened Ramsar sites listed on the ‘Record of Ramsar
sites where changes in ecological character have occurred, are occurring or are likely to
occur’.22 It is coupled with a Monitoring Procedure that allows the Bureau2323 to consult
with a Party when it comes to the Bureau’s attention that a Ramsar-listed site within that
Party’s jurisdiction is likely to be degraded due to anthropogenic interference. The Bureau
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can invite the Party concerned to submit additional reports, monitor the site, negotiate a
solution and it may bring the matter to the attention of the Standing Committee, which can
bring the issue to the COP.24 Technical assistance may also be provided.
(c) Non-Compliance Response Mechanisms
The provisions of the Ramsar Convention related to support for implementation can be
applied by the Standing Committee to address non-compliance.
Technical Assistance Parties must encourage research and the exchange of information and
promote training regarding wetlands.25 The Convention also stipulates that Parties must
consult with other Parties about the implementation of the Convention, especially with
regard to transfrontier wetlands, shared water systems, shared species and development
projects affecting wetlands.26
Guidelines have been produced for the implementation of the wise use of wetlands,27 for
developing and implementing National Wetland Policies,28 reviewing laws and institutions
to promote the conservation and wise use of wetlands29 and for international coopera-
tion.30
At COP-7 the Bureau was directed to establish a clearinghouse and liaise with other inter-
national organisations for information exchange on indigenous knowledge systems and
participatory approaches.31
Financial Assistance The Ramsar Convention was adopted before implementation assis-
tance funds became widespread features in international multilateral environmental agree-
ments. The COP adopts a core budget administered by the Ramsar Bureau.32 Contributions
to the budget come from the Parties, who contribute in proportion to their usual percent-
age contribution to the UN budget, although there is also cooperation with funding institu-
21 Ramsar Resolution 5.4 and Recommendation 4.8.

22 Annex 1 to Recommendation 4.7.
23 The Bureau is now named “The Secretariat”
24 Ramsar Recommendation 4.7.
25 Ramsar, Article 4.
26 Ramsar, Article 5.
27 Ramsar Recommendations 3.3 and 4.10 and Resolutions 5.6 and 5.7.
28 Ramsar Resolution 7.6.
32 Ramsar Website, <http://www.ramsar.org/brochure-e.htm> (8/9/05).
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Background of majo
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tions such as the World Bank and the GEF. A Ramsar Small Grants Fund was established
in 1990. Funds come partly from the Convention’s core budget, but largely from dona-
tions by Parties and others. It is administered by the Bureau under the supervision of the
Standing Committee, pursuant to the Terms of Reference for the Financial Administration
of the Convention, for activities to implement wetland conservation and wise use proj-
ects.33 Developing countries can apply for assistance by official request from a competent
national authority.
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COP-1 (1980) identified the need for a dispute resolution procedure.34 A Task Force was
established to consider this and other proposed amendments. However, the dispute resolu-
tion amendment was eventually abandoned.35

34 Ramsar Recommendation 1.8.
35 Ramsar Website, <http://www.ramsar.org/lib/lib_legal_e.htm> (8/9/05).
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Convention Concerning the Protection of the World Cultural and
Natural Heritage 1972
Overview
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The Convention Concerning the Protection of the World Cultural and Natural Heritage
(World Heritage Convention) entered into force on 17 December 1975. The World
Heritage Convention defines world heritage in two categories: first, cultural heritage, which
are monuments, buildings and sites of outstanding universal value in terms of history, art,
aesthetics, science or ethnology;36 and natural heritage, being natural features, geological
formations, threatened species habitats and sites of outstanding universal value from an
aesthetic, scientific or conservation point of view.37 The World Heritage Convention leaves
it for each Party to identify World Heritage properties within its territory.38 However, it also
places a general duty on each Party to actively identify and to protect such properties.39
Each Party must submit a periodic report every six years on the implementation of the
World Heritage Convention.40 Annex 7 to the Operational Guidelines outlines the format-
ting requirements and the explanatory notes.
Operational Guideline 169 provides for a reactive monitoring system whereby Parties must
submit a report to the World Heritage Committee each time exceptional circumstances
occur or work is undertaken which may have an effect on the state of conservation of the
property. Reactive monitoring is also required in respect of properties inscribed or about
to be inscribed onto the List of World Heritage in Danger. Where a property is being
considered for inscription onto the List of World Heritage in Danger, the Committee must
develop a programme of corrective measures. In doing so, the Committee may send third-
party observers to evaluate the threats to the property.41
The reactive monitoring procedures does make provision for information that may be
received from third-party sources, although the secretariat will verify the source and the
content of the information with the Party concerned and request its comments.42 Under

40 World Heritage Convention, Article 29 and Operational Guideline 203.
41 Operational Guideline 184.
42 Operational Guidelines 174 and 194.

Operational Guideline 171, the Committee requests that Parties cooperate with any
Advisory Bodies which the Committee may have requested to carry out monitoring and
reporting on its behalf on the progress of work undertaken to preserve properties in the
World Heritage List.

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There are no non-compliance procedures established by the Convention or the COP.
Despite the absence of any formal NCP, the World Heritage Convention does have modest
measures in place to assist Parties in their implementation. These measures can be usefully
addressed to instances of likely non-compliance.
Technical Assistance The Convention establishes a process for making requests for inter-
national assistance to protect listed properties.43 Assistance may involve: studies concern-
ing the artistic, scientific and technical problems raised by the protection; conservation,
presentation and rehabilitation of the cultural and natural heritage; technical assistance;
training; supplying equipment; low-interest or interest-free loans; and the granting of non-
repayable subsidies.44
Operational Guideline 212 provides that the World Heritage Committee is to seek to
develop capacity-building opportunities among the Parties to the Convention. One such
capacity-building initiative is the Global Training Strategy, which is linked to the Global
Strategy for a Representative, Balanced and Credible World Heritage List and Periodic
Reporting.45 There are also provisions for cooperation in awareness raising and educa-
tion.46
Financial Assistance The World Heritage Fund for the Protection of World Cultural and
Natural Heritage of Outstanding Universal Value was established under Article 15 of the
Convention. It is a Trust Fund maintained through compulsory and voluntary contribu-
tions by Parties, as well as donations to provide assistance to Parties. Funding is available
for world heritage identification and protection, emergency assistance, and for educa-
tional, information and promotional activities.47 Parties contribute a set amount every two
years.48 Where the reactive monitoring procedures have been invoked, the World Heritage
Committee may authorise the provision of emergency funding from the World Heritage
Fund as well as technical assistance in order to prevent the deletion of any property from
the World Heritage List.49
43 World Heritage Convention, Articles 19-22.

46 Operational Guidelines 217-222.
49 Operational Guidelines 170, 176, 183 and 189.
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In addition, the World Heritage Committee has established a Reserve Fund to meet
requests for assistance resulting from natural disasters and emergencies.50 Funds in trust
are another source of funding; these are donations by specific countries to support specific
projects.51
Penalties Failure to provide the compulsory contribution for the current year or the pre-
ceding year excludes the non-compliant Party from membership of the World Heritage
Committee.52
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There are no dispute resolution mechanisms in the Convention.
50 UNESCO Financial Regulations, reg. 5.1.

51 http://whc.unesco.org/pg.cfm?cid=150 (7/10/05).
52 World Heritage Convention, Article 16.5.

Convention on International Trade in Endangered Species of Wild
Flora and Fauna 1973 (CITES)
Overview
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The Convention on International Trade in Endangered Species of Wild Flora and Fauna
(CITES) entered into force on 1 July 1975. It establishes a permit system to control imports
and exports of wild fauna and flora. CITES lists controlled flora and fauna in three appendi-
ces.53 Appendix I covers all species threatened with extinction that are or may be affected
by trade. Commercial trade in these species is essentially banned and can only be autho-
rised in exceptional circumstances. Appendix II covers species which are not currently
threatened with extinction but which may become so unless trade in such specimens is
controlled under the Convention. Appendix III covers species that any Party has identified
as being subject to national regulation for the purpose of preventing or restricting exploita-
tion and as requiring the cooperation of other Parties to control trade. Parties are required
to establish national Scientific Authorities, to advise on the endangered status of native
species of flora and fauna, and a Management Authority to regulate their trade.54
Pursuant to Article VI.6, each Party must maintain records of trade in species listed in
Appendices I, II and III, which cover: the names and addresses of exporters and importers;
the number and type of permits and certificates granted; the States with which such trade
occurs; the numbers or quantities and types of specimens; names of species as included
in Appendices I, II and III; and, where applicable, the size and sex of the specimens in
question.
In addition, Parties must prepare:

n Periodic reports on their implementation of the Convention;
n Annual reports containing a summary of the information specified in Article
VIII, which must be transmitted to the Secretariat; and
n Biennial reports on legislative, regulatory and administrative measures taken to
enforce the provisions of the Convention.55
53 CITES, Article II.

54 CITES Article .
55 CITES, Article VIII.7.
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Annual reports must be submitted by 31 October for the previous trade year, although
extensions are available on written request.56 The requirement for biennial reporting has
been largely unimplemented, although at COP-11 (2000) Parties were called upon to
comply.57
Resolution 11.17 consolidates all reporting resolutions and decisions. Guidelines on

reporting were introduced in 1982 following Resolution 3.10, which have recently been
revised and updated.58 Decision 13.90 directs the Secretariat to identify ways to reduce the
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reporting burden on Parties and report at COP-14 on the results of this work.
The Scientific Authority of each Party has obligations to monitor the export permits
granted by the State for Appendix II specimens and the actual exports of such specimens.59
Additionally, the Parties, NGOs such as the TRAFFIC Network and international bodies
such as the World Customs Organisation and Interpol, perform monitoring functions and
report infractions to the Secretariat.60 TRAFFIC is an international wildlife trade monitoring
network that was founded in 1976 as a joint programme between the WWF and IUCN-The
World Conservation Union.61 It works cooperatively with the CITES Secretariat in imple-
menting the Convention, its mission being to ensure that wildlife trade does not threaten
nature conservation.62 The Secretariat also conducts ad hoc verification missions to assess
a Party’s compliance with the Convention.63
(b) Multilateral Non-Compliance Procedure
Under Article VXIII, if the Secretariat is satisfied that any species in Appendices I or II is
being adversely affected or that the Convention is not being effectively implemented it
will communicate this issue to the relevant Party’s Management Authority. The Party must
propose remedial action.
COP-11 (2000) adopted a formal NCP, which can be invoked where Parties fail to meet
their reporting requirements and potentially, their financial obligations under the Trust
Fund.64 Resolution 11.3 states that if a major implementation problem is brought to the
Secretariat’s attention, the Secretariat and the non-compliant Party are to work together to
resolve the problem. The Secretariat is to offer advice on technical assistance as required. If
a solution cannot be readily achieved, the Secretariat must bring the matter to the attention
56 CITES Resolution 11.17.
57 CITES Doc. 7.19, ‘Report on National Reports under Article III, Paragraph 7, of the Convention’, prepared by the Secretariat for
COP-7; CITES Decision 11.38 (ex-9.20); Reeves, R, Policing International Trade in Endangered Species: the CITES Treaty and Compliance,
Earthscan Publications, London, 2002, p.67.
58 See SC45 Doc 13.2 ‘Guidelines for the Preparation of Annual Reports’; Reeves, R, Policing International Trade in Endangered Species:
the CITES Treaty and Compliance, Earthscan Publications, London, 2002, p.63.
59 CITES, Article IV.3.
60 Reeves, R, Policing International Trade in Endangered Species: the CITES Treaty and Compliance, Earthscan Publications, London, 2002,
p.69.
61 http://www.traffic.org/about/what_is.html (3/11/05).
62 http://www.traffic.org/about/ and http://www.traffic.org/about/what_is.html (3/11/05).
p.75.
64 At the Standing Committee’s 46th meeting, the Secretariat considered that Article XI.3 (a) and Resolution 11.2 can form the basis of
formal action for dealing with fiscally non-compliant Parties: Reeves, R, Policing International Trade in Endangered Species: the CITES
Treaty and Compliance, Earthscan Publications, London, 2002, p.155.

of the Standing Committee, which may pursue the matter directly with the non-compliant
Party to find a solution. The Secretariat must keep all Parties informed of such implemen-
tation problems and any actions taken to resolve them. Resolution 11.17 provides that a
failure to submit a report by 31 October for trade in the previous year constitutes a major
problem, which the Secretariat must refer to the Standing Committee for solution in accor-
dance with Resolution 11.3.
The COP employs non-compliance responses, which include: requiring the Secretariat
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to issue security paper (i.e. watermarked and of identifiable authenticity) for permits and
certificates to reduce instances of forgery and to confirm permits for a period of time; issu-
ing formal warnings; the Secretariat suspending cooperation with the non-compliant Party;
the Secretariat conducting on-site verifications; the Standing Committee recommending
suspension of trade in CITES-listed species with the non-compliant Party and specifying
the conditions to be met before the trade restrictions can be lifted.65
At the Standing Committee’s 46th meeting, the Secretariat presented the Committee with a
range of possible responses for non-compliance, some of which are already in use, in an
attempt to revise Resolution 11.3. The range included: providing advice; informal warn-
ings; additional self-reporting; public notification of non-compliance; on-site verification;
action plans; suspending legal rights and privileges (i.e. suspension of trade in one or all
CITES specimens, voting restrictions, ineligibility of Standing Committee membership
and of participation in committees and working groups and ineligibility to receive docu-
ments for meetings); and financial penalties.66 However, the Committee declined to revise
Resolution 11.3 and instead, directed the Secretariat to prepare a discussion paper for
COP-12 (2002).67 An open-ended intersessional working group was established at the 50th
meeting of the Standing Committee to finalise a set of guidelines for complying with the
Convention, however these have not been completed.68
Technical Assistance Resolution 3.4 encourages Parties to include technical assistance in

bilateral and multilateral aid programmes. In addition, Parties receive assistance with the
identification of CITES species pursuant to Article XII.2(f), which states that the Secretariat
must periodically publish and distribute to Parties current editions of Appendices I, II
and III together with any information that would facilitate the identification of specimens
included in those Appendices. In response, the Secretariat and a Committee of Experts
have developed an Identification Manual.69
Capacity-building workshops are conducted for Management Authority staff and enforce-
ment officers while legal officers are trained under the National Legislation Project. The
p.93.
66 CITES SC46 Doc.11.3, ‘Possible measures for Non-compliance’, CITES Secretariat (March 2002); Reeves, R, Policing International Trade in
Endangered Species: the CITES Treaty and Compliance, Earthscan Publications, London, 2002, p.157.
67 CITES COP 12, Doc.8, ‘Report of the Chairman’, para.40.
68 UNCCD COP 7, Items 13(b) and (c) of the provisional agenda, Executive Summary, paras 18-20.
p.238.
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latter aims to help Parties draft appropriate laws and policies for the implementation of
the Convention.70
Financial Assistance CITES has no funding mechanism to facilitate compliance. Initially,

the Secretariat was funded by UNEP. However, the 1979 Bonn amendment to Article
XI, which entered into force on 13 April 1987, conferred financial powers to the COP,
and funding from UNEP was gradually phased out. A Trust Fund was established with an
agreed scale of contributions to finance, inter alia, technical assistance to the Parties. At
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COP-12 (2002) the Parties adopted procedures and guidelines for the approval of exter-
nally funded projects.71
Penalties The failure to nominate a Scientific Authority in accordance with Article IX of

the Convention was dealt with by Resolution 10.3. It called upon Parties to refuse export
permits from Parties that have not given the Secretariat details of a Scientific Authority for
more than one interval between regular meetings of COP. At the same time, it encouraged
technical assistance to Scientific Authorities with a view to facilitating compliance.
Where there is a dispute over the interpretation or application of the provisions of the
Convention, Parties can opt for negotiation. They can proceed onto arbitration with the
Permanent Court of Arbitration, provided there is mutual consent.72

72 CITES, Article XVIII.

Convention on the Conservation of Migratory Species of Wild
Animals 1979
Overview
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The Convention on the Conservation of Migratory Species of Wild Animals (CMS) entered
into force on 1 November 1983. It aims to conserve and manage migratory species of wild
animals through the action of Range States, i.e. those States exercising jurisdiction within
the range of any such species. Under Article II, Parties are encouraged to promote, cooper-
ate in and support research relating to migratory species and to provide immediate protec-
tion to the endangered migratory species listed in Appendix I. Parties are also encouraged
to conclude agreements with other Range States for the conservation and management
has been developed under the auspies of the Convention on the conservation of Migratory
Species of Wild Animals (CMS) having unfavourable conservation status listed in Appendix
II.73 One of the Secretariat’s functions is to promote, under the Conference of the Parties,
the conclusion of Agreements (Art.IX.4 (g)). The Scientific Council may recommend the
Conference of the Parties (i) conservation and management measures to be included in
Agreements (Article VIII.5(d) of the convention); and (ii) scientific solutions to problems
relating to migratory species habitats (Art. VIII.5 (e)).
73 CMS Articles IV & V.1. These Agreements and Memoranda of Understanding include:
• Agreement on the Conservation of Seals in the Wadden Sea 1990 (between Denmark, Germany and The
Netherlands);
• Agreement on the Conservation of Populations of European Bats 1991;
• Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas 1991;
• Agreement on the Conservation of African-Eurasian Migratory Waterbirds 1995
• Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic
Area 1996;
• Agreement on the Conservation of Allbatrosses and Petrels 2001
• Memorandum of Understanding concerning Conservation Measures for the Siberian Crane 1993;
• Memorandum of Understanding on Conservation Measures for the Slender-billed Curlew 1994;
• Memorandum of Understanding concerning Conservation Measures for Marine Turtles of the Atlantic Coast of
Africa 1999;
• Memorandum of Understanding on the Conservation and Management of the Middle-European Population of
the Great Bustard 2001;
• Memorandum of Understanding on the Conservation and Management of Marine Turtles and their Habitats of
the Indian Ocean and South-East Asia 2001;
• Memorandum of Understanding concerning Conservation and Restoration of Bukhara Deer 2002
• Memorandum of Understanding concerning Conservation Measures for the Aquatic Warbler 2003;
• Memorandum of Understanding on the Conservation and Management of the West African populations of the
African Elephant (signed at CoP8, Nairobi, 22 November 2005);
• Memorandum of Understanding on the Conservation and Management of the Saiga Antelope (signed at
CoP8, Nairobi, 23 November 2005).
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Parties have obligations to report on their implementation efforts to conserve those migra-
tory species in Appendices I and II that pass through their jurisdiction and also must
monitor such migratory species and keep the Secretariat informed of the species’ status.74
Resolution 6.5 recommended that the format of national reports be simplified and that
the content be standardised to encourage Parties to provide information that directly
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relates to the implementation of the CMS Strategic Plan. Parties were encouraged to
trial this new reporting format for COP-7 (2002). At COP-7, Resolution 7.8 commended
the new reporting format and recommended that the final version be sent to the Standing
Committee for approval and adoption at its 26th meeting. The new reporting format
requires, inter alia, performance review information with respect to how Parties are imple-
menting the Strategic Plan.75
Article V sets out criteria for the substance of regional Agreements negotiated under the
auspices of Article IV. Such Agreements should establish the appropriate machinery to
monitor their effectiveness and reporting obligations.
The CMS and the COP do not specify any non-compliance procedures. However, the
Standing Committee, established by Resolution 1.1, mainly for inter-sessional imple-
mentation review and guidance to the Secretariat on policy and budgetary matters, has
a regional representation. That gives a possibility of dealing with non-compliance, e.g.
through proposals to the Conference for the improvement of rules of procedures. Secondly,
the coordination and existing inter linkages between CMS and its Agreements facilitate
multilateral NCP. In that regard, the agreements establish activities reports to the CMS con-
ference of the Parties, and the Memoranda of understanding are generally administered by
the Secretariat. At some extent, as the Scientific Council composition includes nominated
experts on their own merit that could be compared to a “third body” for monitoring the
implementation and recommending specific solutions to the Conference on species status
assessment.
As there is no formal NCP, so there are no formal non-compliance response mechanisms.

However, a range of support measures for implementation can be directed to assist Parties
experiencing compliance difficulties.
Technical Assistance Workshops have been held to assist Parties in complying with their
monitoring obligations. For example, in 1999 an international workshop took place in
Bonn, Germany, to celebrate the 20th anniversary of the Convention and present new
74 CMS Article VI.

75 COP7 2002, ‘Proposed Format for National Reports’.
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research and monitoring technologies.76 Resolution 7.8 instructed the Secretariat to provide
technical capacity to facilitate the transfer of knowledge on the CMS Information System to
developing countries. It also calls for Parties to contribute to the ongoing development and
maintenance of the CMS Information System and the CMS Global Register of Migratory
Species. The Secretariat provides, on request and resources permitting, Technical and
Scientific assistance on migratory species, e.g. parties lists and regional lists of species,
conservation measures, etc.
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Financial Assistance UNEP-WCMC provides the Secretariat and administers the

Convention’s Trust Fund. A new fundraising strategy was launched at COP-8 (2005). , It
is expected that the new association called ‘Friends of CMS’ will play a key role for its
implementation and the enforcement of the CMS partnership. The eighth Conference of
the parties has adopted a new Voluntary contribution Trust Fund for the Convention, under
establishment and administration by UNEP.77
Parties are to resolve disputes relating to the interpretation or application of the Convention
through negotiation and, if necessary, arbitration at the Permanent Court of Arbitration.
76 CMS Website, <http://www.cms.int/news/PRESS/nwPR1999/nw990627.htm> (7/10/05).

77 CMS Website, <http://www.cms.int/bodies/COP/cop8/cop8_mainpage.htm> (8/9/05).
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Convention on Biological Diversity 1992
Overview
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The Convention on Biological Diversity (CBD) entered into force on 29 December 1993.
Article 1 outlines the three objectives of the Convention: the ‘conservation of biologi-
cal diversity, the sustainable use of its components, and the fair and equitable sharing of
the benefits arising out of the utilization of genetic resources.’ The CBD promotes inter-
State cooperation for the conservation and sustainable use of biological diversity,78 and
especially of technical and scientific cooperation.79 This has facilitated many bilateral
and multilateral projects. The Convention aims to achieve the conservation of biological
diversity by: identifying and monitoring of the components of biological diversity and of
the processes and activities that threaten those components;80 providing for in-situ and
ex-situ conservation;81 and integrating the conservation and sustainable use of biological
resources into national decision-making.82
The reporting provisions of the CBD are sparse. Article 26 of the CBD calls upon Parties
to report upon their measures to implement the CBD and the effectiveness of those objec-
tives. COP-2 (1995) decided that the first national reports should be delivered to COP-4 in
1998 and adopted guidelines for the preparation of reports were adopted at COP-2.83
In addition to the reporting obligations, Article 7 provides that each Party must monitor
the components of biological diversity set out in Annex I for the purposes of in-situ and
ex-situ conservation.
There is no established NCP. However, Decision VII/30 established the Ad Hoc Open-
ended Working Group on Review of Implementation of the Convention. Of particular
interest is the Working Group’s mandate ‘to consider progress in the implementation of
the Convention…to review the impacts and effectiveness of existing processes under the
78 CBD, Article 5.
79 CBD, Article 18.
80 CBD, Article 7.
81 CBD, Articles 9 and 18.
82 CBD, Article 10.
83 CBD Decision II/17.
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Convention, such as meetings of the Conference of the Parties, the Subsidiary Body on
Scientific, Technical and Technological Advice, national focal points and the Secretariat…
and to consider ways and means of identifying and overcoming obstacles to the effective
implementation of the Convention.’84 At its first meeting, the Working Group recom-
mended that the COP investigate the obstacles to implementation at national level and
ways to overcome those obstacles.85 This Working Group may potentially develop into a
non-confrontational means of dealing with instances of non-compliance and providing
non-compliance response assistance.
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Technical Assistance The CBD contains obligations on promoting and cooperating

with respect to: research and training;86 public education and awareness;87 information
exchange;88 and access to technical and scientific cooperation.89 The Convention estab-
lished a clearing-house mechanism (CHM) to ensure that all Parties have access to the
information and technologies required to implement the Convention. The CHM was set up
at COP-1 (1994) and is funded through the Convention’s regular budget and through vol-
untary contributions.90 It promotes cooperation in six key areas: tools for decision-making;
training and capacity building; research; funding; technology transfer; and the repatriation
of information.91 The CHM provides universal access to Convention records, case studies,
national and other reports, initiatives and programmes and technical and scientific infor-
mation.92 It also seeks to increase public awareness of the Convention’s programmes and
links experts to relevant work programmes.
At COP-4 (1998), Decision IV/2 recommended that Parties organise a CHM steering com-
mittee or working group to build up the information contained in the CHM at all levels,
including country profiles, biodiversity strategies and action plans, legislation, scientific
and technological information and financial sources. Numerous CHM regional workshops
have been conducted since 1997. In 1999, an independent review of the pilot phase of
the CHM took place, culminating in the development of a strategic plan and long-term
program of work.93
An Informal Advisory Committee, which is coordinated by the Executive Secretary, over-

sees the CHM.94 The continuation and mandate of the Committee, as well as its operational
procedure, were reviewed at COP-7 (2004),95 which decided to extend the Committee’s
mandate and review its continuation and operation at COP-9. A network of CHM National
Focal Points has been established to facilitate technical and scientific cooperation.
84 Decision VII/30, para 23.

85 Recommendation 5(b).
86 CBD, Article 12.
87 CBD, Article 13.
88 CBD, Article 17.
89 CBD, Article 18.
90 CBD Decisions I/3 and I/9.
91 CBD Website, <http://www.biodiv.org/chm/default.aspx> (8/9/05).
94 CBD Decision III/4 and IV/2.
95 CBD Decision V/14.
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Financial Assistance In relation to funding, Article 20 states that each Party is to provide
financial support and incentives for national projects that implement the objectives of the
Convention. Developed Parties are also expected to provide additional funding to devel-
oping Parties to enable the latter to implement the Convention. Developed Parties may
provide funding through regional, bilateral and multilateral channels.
Article 21 provides for a mechanism to provide financial resources on a grant or conces-

sional basis to help developing Parties. COP-1 (1994) decided that the GEF would con-
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tinue to serve as the institutional structure to operate the financial mechanism under the
Convention on an interim basis, in accordance with Article 39 of the Convention.96 COP-3
(1996) adopted the Memorandum of Understanding between the COP of the CBD and the
Council of the GEF. The Memorandum of Understanding allows the GEF, in permanently
operating the financial mechanism under the Convention, to take guidance from the COP
in funding activities to implement the Convention.97 COP-3 (1996) also requested the
financial mechanism to provide funding for capacity building in developing countries,
particularly in relation to IT training and pilot projects to implement the CHM.98 Guidance
has also been provided to the financial mechanism at COPs.99
Article 27 provides that the Parties shall seek solution by negotiation where there is a
dispute concerning the application of the Convention. If the dispute is not resolved, they
may seek mediation by a third Party.
The Convention provides that disputes can be settled through arbitration in accordance
with Part I of Annex II, conciliation in accordance with Part II of Annex II or through the
International Court of Justice. However, Parties must firstly submit a declaration that they
accept Arbitration or the International Court of Justice as a compulsory means of dispute
resolution. Otherwise, the dispute must be submitted to conciliation in accordance with
Part II of Annex II if negotiation and mediation fail to reach a solution.
96 CBD Decision I/2.

97 CBD Website, <http://www.biodiv.org/chm/background.asp#> (8/9/05).
98 CBD Decision III/4.
99 See CBD Decision III/5, Decision VI/11, Decision IV/13, Decision V/13 and Decision VII/20.

United Nations Convention to Combat Desertification in those
Countries Experiencing Serious Drought and/or Desertification,
Particularly in Africa 1994
Overview
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The United Nations Convention to Combat Desertification in those Countries Experiencing

Serious Drought and/or Desertification, Particularly in Africa (UNCCD) entered into force
on 26 December 1996. The objective of the Convention is to promote an integrated
approach to combating desertification and mitigating the effects of serious drought and/or
desertification, through effective actions at all levels, supported by international co-opera-
tion and partnership arrangements.100
The Convention distinguishes between affected developing Parties and developed Parties.
Article 5 requires affected developing Parties to give due priority to combating desertifica-
tion, establish strategies within the framework of sustainable development plans, address
the underlying causes of desertification, promote awareness of the problem and strengthen
relevant existing legislation. Article 6 requires developed Parties to actively support the
efforts of affected developing Parties to combat desertification by providing financial assis-
tance and mobilising funding.
There are five Annexes to the Convention dealing with the implementation of the
Convention in five regions affected by desertification: (I) Africa; (II) Asia; (III) Latin America
and the Caribbean; (IV) Northern Mediterranean; and (V) Central and Eastern Europe. The
African Annex is the most detailed and contains provisions for financial mechanisms and
resources, co-ordination, partnership and follow-up arrangements.
Article 9 of the UNCCD requires affected developing Parties and Parties that are members
of Regional Implementation Annexes to prepare National Action Programmes in order
to identify the factors contributing to desertification in their countries and to describe
practical measures to combat them. The Regional Implementation Annex for Africa and
the Northern Mediterranean specify that their national action programmes must contain
provisions for monitoring the implementation of the Convention.101
In addition, Parties must communicate to the COP at its ordinary sessions reports on
implementation measures.102 Affected developing Parties must provide reports of strate-
100 UNCCD, Article 2.1.
101 Annex I, Article 8.3(e) and Annex IV, Article 5(f).
102 UNCCD, Article 26.
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gies developed pursuant to Article 5 and their NAPs.103 Developed Parties must provide
information on the measures undertaken to assist in the preparation and implementation of
Action Programmes, including information on financial resources they have provided.104
Under Article 27, the COP is empowered to consider and adopt procedures and insti-
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tutional mechanisms to resolve issues regarding implementation. At COP-6 (2003), the
Parties convened an Open-Ended Ad Hoc Group of Experts to make recommendations
on such procedures and institutional mechanisms.105 A report has been complied which
summarises non-compliance mechanisms that have been developed in other biodiversity-
related as well as the cluster of chemical Conventions. The report recommends that COP-7
(2005) may wish to consider requesting the Group to develop a compliance model for
consideration.106
Technical Assistance Numerous articles provide for technical cooperation between Parties.
Article 6(e) requires developed Parties to promote and facilitate access by affected Parties
to appropriate technology, knowledge and know-how in combating desertification. Article
16 provides that Parties agree to integrate and coordinate the collection, analysis and
exchange of short-term and long-term data and information to ensure the systemic obser-
vation of land degradation. Article 17 states that Parties undertake to promote technical
and scientific cooperation. Article 18 provides that Parties undertake to promote, finance
and/or facilitate the financing of the transfer, acquisition, adaptation and development of
environmentally sound, economically viable and socially acceptable technologies relevant
to combating desertification. This cooperation is to be conducted bilaterally or multilater-
ally. Parties are also required to fully utilize existing national, subregional and international
information systems and clearing houses for the dissemination of information on available
technologies; facilitate technology cooperation through financial assistance; and facilitate
access by affected developing Parties to technology on favourable terms. Finally, Article 19
provides that Parties recognize the importance of capacity building.
Financial Assistance In relation to financial assistance, Article 4.2(h) provides that in pursu-
ing the objectives of the Convention, the Parties will promote the use of existing bilateral
and multilateral financial mechanisms and arrangements that mobilise and channel sub-
stantial financial resources to affected developing Parties.107 While all Parties must make
every effort to ensure that adequate financial resources are available for programmes to
combat desertification,108 the financial burden to provide, seek out and mobilize funding
is the responsibility of the developed Parties.109

105 UNCCD Decision 22/COP 6.
106 UNCCD COP 7, Items 13(b) and (c) of the provisional agenda, Executive Summary, Para 52.
107 See also UNCCD, Article 4.3.

Article 21 establishes a Global Mechanism to promote the mobilisation of funds to devel-
oping Parties. The International Fund for Agricultural Development (IFAD) was selected at
COP-1 (1997) to house the Global Mechanism, which operates in conjunction with the
World Bank and the UNDP.110 The mechanism seeks to promote greater coordination of
funding and greater effectiveness in the use of funds.
COP-5 (2001) enhanced the UNCCD’s financial base following strong support for a pro-
posal by the GEF Council to designate land degradation as another focal area for fund-
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ing.111
Disputes must be settled through negotiation or other peaceful means.112 Parties have the
choice of opting for arbitration under procedures to be adopted by the COP in an annex
as soon as practicable, or in the International Court of Justice, provided they have given
written notice. If the dispute takes more than 12 months to settle or the Parties have not
opted for arbitration, it must be submitted to conciliation. Arbitration and conciliation
procedures are yet to be adopted.113
110 UNCCD Decision 24/COP.1.

111 UNCCD Decision 9/COP.5.
113 COP 7 UNCCD, Items 13(b) and (c) of the provisional agenda, p.14.
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International Treaty on Plant Genetic Resources for Food and
Agriculture 2001
Overview
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When the text of the CBD was adopted in 1992, member countries also adopted
Resolution 3 of the ‘Nairobi Final Act’, which recognised the need to resolve issues
relating to plant genetic resources under the auspices of the United Nations Food and
Agricultural Organisation.114 The International Treaty on Plant Genetic Resources for Food
and Agriculture (Plant Genetic Resources Treaty) was signed on 3 November 2001 and
entered into force on 29 June 2004.
The objectives of the Plant Genetic Resources Treaty are the conservation and sustainable
use of plant genetic resources for food and agriculture (PGRFA) and the fair and equitable
sharing of benefits arising out of their use, in accordance with the CBD.115 Under Article
5, Parties are required to: survey and inventory PGRFA; promote the collection of PGRFA
and relevant associated information on those that are under threat or are of potential use;
promote or support farmers and local communities’ efforts to manage and conserve their
PGRFA; promote in situ conservation of wild crop relatives and wild plants for food pro-
duction; and monitor the maintenance of the viability, degree of variation, and the genetic
integrity of collections of PGRFA.116 Article 6 obliges Parties to develop and maintain
appropriate policy and legal measures that promote the sustainable use of PGRFA. Article
10 establishes the Multilateral System to facilitate access to PGRFA. Multilateral access is
limited to the crops and forages listed in Annex I and is achieved through transfer agree-
ments.117
The Plant Genetic Resources Treaty does not require the submission of performance review
reports from the Parties. In respect of verification, the Secretary has the right to access
and inspect all activities that are directly related to the conservation and exchange of the
material covered by Article 15.1. That provision deals with accessing ex situ collections
of PGRFA held in trust by the International Agricultural Research Centres (IARCs) of the
Consultative Group on International Agricultural Research (CGIAR).
114 Commission on Genetic Resources for Food and Agriculture, <http://www.fao.org/ag/cgrfa/IU.htm> (8/9/05).
115 PGRFA Treaty, Article 1.
116 PGRFA Treaty, Article 5.1.

To a limited degree, performance review might be constructed by collecting together the
operational information required to be exchanged in the course of transactions regulated
by the Treaty. Parties providing PGRFA under the Multilateral System must provide all avail-
able data and information on the product being supplied.118 Under Article 5.1(f), Parties
are also required to monitor the maintenance of the viability, degree of variation, and
the genetic integrity of collections of PGRFA. Under Article 17, Parties must cooperate to
establish a global information system (called the Global Information System) to facilitate
the exchange of information on scientific, technical and environmental matters related to
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PGRFA. The expectation is that such exchange of information will assist in benefit shar-
ing, by making information on PGRFA available to all Parties. In developing the Global
Information System, cooperation must be sought from the Clearing-House Mechanism
of the CBD. Parties agree to make available information through the Global Information
System, including catalogues and inventories, information on technologies, results of tech-
nical, scientific and socio-economic research, including characterization, evaluation and
utilization, regarding PGRFA in Annex I.119
Article 21 requires the Governing Body to, at its first meeting, consider and approve
procedures and operational mechanisms, including monitoring, to promote compliance
with the provisions of the Treaty. The Interim Committee for the Treaty, the Commission
on Genetic Resources for Food and Agriculture, has convened an Open-ended Working
Group to consider the issue of non-compliance at COP-1 (2005).120
The Plant Genetic Resources Treaty contains extensive assistance provisions that might be
applied as non-compliance response mechanisms.
Technical Assistance Article 5.1 provides that Parties must, in cooperation with other Parties
where appropriate, promote an integrated approach to the exploration, conservation and
sustainable use of PGRFA while Article 5.1(e) encourages Parties to cooperate to promote
the development of an efficient and sustainable system of ex situ conservation and the
development and transfer of appropriate technologies for this purpose. The Treaty provides
that international cooperation is to be directed to: assisting developing Parties in their con-
servation and sustainable use of PGRFA; promoting conservation, evaluation, documen-
tation, genetic enhancement, plant breeding and seed multiplication; sharing, providing
access to and exchanging PGRFA as well as information and technology in accordance
with Part IV; and implementing the funding strategy in Article 18.121 Under Article 8, Parties
agree to promote the provision of technical assistance to contracting Parties.
118 PGRFA Treaty, Article 12.3(c).

119 PGRFA Treaty, Article 13.2(a).
120 FAO Website, <http://www.fao.org/ag/cgrfa/compliance.htm> (17/9/05).
121 PGRFA Treaty, Article 7.2(a), (b) and (d).
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Article 13 states that benefits accruing from PGRFA accessed through the Multilateral
System must be shared through the exchange of information, transfer of technology, capac-
ity building and funding. These benefits should flow to farmers in developing countries
embodying traditional lifestyles.
The provision then expands on each form of assistance. Exchange of information was dealt
with in (a) above. In relation to technology transfer, Parties undertake to provide and/or
facilitate access to technologies for the conservation, characterisation, evaluation and use
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of PGRFA that are within the scope of the Multilateral System.122 Access to technology for
developing countries must be provided on fair and favourable terms, although intellectual
property rights are still protected.123 In relation to capacity building, Parties agree to give
priority to: programmes for scientific and technical education and training in conservation
and sustainable use of PGRFA; strengthening facilities for conservation and sustainable use
of PGRFA; and scientific research.124 Again, the emphasis is on assisting developing coun-
tries. Article 13.3(d) deals with the sharing of commercial benefits under the Multilateral
System. The multilateral transfer agreements must include a requirement that any recipient
who commercialises a PGRFA product by incorporating material from the Multilateral
System must make a payment to the financial mechanism established under Article 19.3(f).
The details of these terms and conditions are to be ironed out at the first meeting of the
Governing Body.
Financial Assistance Article 19.3(f) requires the Governing Body to set up a Trust Fund.
Article 18 deals with funding priorities. Developed Parties are required to provide, and
developing Parties to avail themselves of, financial resources, including through bilateral
and multilateral channels and through the Trust Fund. Funding priorities will be given to
the implementation of agreed plans and programmes for farmers in developing countries
who conserve and sustainably utilize PGRFA.125
Parties must ensure that opportunities to seek recourse are available under their legal sys-
tems where contractual disputes arising under multilateral transfer agreements arise.126
In respect of disputes concerning the interpretation or application of the Treaty, Parties

must firstly opt for negotiation and then, if necessary, mediation by a third Party. Parties
may, at any time, declare that for disputes not resolved through negotiation or mediation,
they accept arbitration in accordance with Part 1 of Annex II or the International Court of
Justice as compulsory means of dispute resolution. Otherwise, the dispute must be submit-
ted to conciliation in accordance with Part 2 of Annex II.
122 PGRFA Treaty, Article 13.2(b)(i).

123 PGRFA Treaty, Article 13.2(b) (iii).
124 PGRFA Treaty, Article 13.2(c).

2. Hazardous Materials
Basel Convention on the control of Transboundary Movements of

Hazardous Wastes and their Disposal 1989
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Overview
The Basel Convention on the Control of Transboundary Movements of Hazardous

Wastes and their Disposal (the Basel Convention) entered into force on 5 May 1992.
The Convention regulates the transboundary import and export of hazardous wastes and
obliges Parties to ensure that such wastes are managed and disposed of in an environmen-
tally sound manner.127
Article 2.1 defines wastes as ‘substances or objects that are disposed of or are intended
to be disposed of or are required to be disposed of by the provisions of national law.’ To
‘dispose of’ a waste means any of the operations set out in Annex IV, which may include
resource recovery, recycling, reclamation, direct re-use or alternative use. Article 1 defines
‘hazardous wastes’ as those that belong to any of the waste streams contained in Annex
I, unless they do not possess any of the hazard characteristics in Annex III. Further lists
of waste are contained in Annex VIII (wastes that are presumed to be hazardous) and
Annex IX (wastes that are presumed not to be hazardous), which were adopted at COP-4
(1998) and entered into force on 6 November 1998. The Convention also addresses ‘other
wastes’, defined in Annex II as ‘categories of wastes requiring special consideration’ (i.e.
household wastes and their residues). The Convention does not cover radioactive waste
that is already covered by other international control systems.128 Parties to the Convention
adopted a decision at COP-3 (1995) to ban the movement of hazardous wastes from States
listed in Annex VII (Members of OECD, EC and Liechtenstein) to States not listed in Annex
VII.129 At the time of writing, the ban has not yet entered into force.
The Basel Convention operative provisions have been grouped into three categories for the
purposes of this Chapter.
1. Waste management Under Article 4(2)(a)-(d), each Party must take appropriate
measures to: ensure that the generation of hazardous wastes is reduced to a
minimum; ensure the availability of adequate disposal facilities as close as
possible to the source of generation of waste; ensure that persons involved
in the management of hazardous wastes take such steps as are necessary to
127 Basel Website, <http://www.basel.int/pub/basics.html> (8/9/05).

128 Basel Article 1(3).
129 See Kummer, Katharina International Management of Hazardous Wastes: the Basel Convention and Related Legal Rules, Oxford
University Press, Oxford, c1995 1999.
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prevent pollution; and ensure that a transboundary movement of hazardous
wastes is reduced to a minimum and is conducted in a manner that will protect
human health and the environment.
2. Control system for transboundary movements Under Article 4(5), Parties shall
not permit the export of hazardous wastes or other wastes to a non-Party or the
import of hazardous waste from a non-Party130. Parties may exercise the right to
prohibit the import or export of hazardous wastes and must inform other Parties
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of this decision.131 In the case of each transboundary movement, the consent of
States of export, import and transit is required. This consent must be obtained
through a system of notifications. States are obliged to prevent the export
or import of wastes if they will not be managed according to principles of
environmentally sound management (ESM).132 Thus, the regulatory system under
the Basel Convention is one of prior informed consent. Wastes are to be packed
and labelled according to international standards and must be accompanied by
a movement document.133 There is a duty to re-import shipments that cannot be
completed in accordance with the terms of the contract between the exporter
and disposer (the contract specifies the ESM requirement).134
3. Illegal traffic All transboundary movements of hazardous and other wastes that
do not fully conform to the control system of the Convention constitute illegal
traffic135. Illegal traffic is considered criminal and Parties should introduce
appropriate national/domestic legislation to prevent and punish illegal
traffic136. For cases of illegal traffic, Article 9 of the Convention allocates the
responsibility for the environmentally sound disposal of the wastes in question
among the different States and entities concerned.
130 Unless the Party has entered into a bilateral, multilateral or regional agreement or arrangement with the non-Party regarding trans-
boundary movement of such wastes that does not derogate from the environmentally sound management of such wastes (Article
11).
131 Basel Articles 4(1)(a) and 13(2)(d)).
132 Basel Article 4(2)(e) and (g).
133 Basel Article 4(7)(b) and (c).
134 Basel Articles 8.
135 Basel Article 9.1.
136 Basel Article 4.3 and 9.5.

Under Article 13(3), Parties must transmit reports to the COP each year. The reports must
provide information on: competent authorities and focal points; transboundary move-
ments of hazardous wastes; efforts to achieve reductions in waste; available qualified
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statistics compiled by them on how the production, transportation and disposal of hazard-
ous wastes affects human health and the environment; bilateral, multilateral or regional
agreements entered into pursuant to Article 11 of the Convention; accidents in the trans-
boundary movement or disposal of waste and measures taken to deal with them; disposal
options within national jurisdictions; measures undertaken to develop technologies to
reduce or eliminate the production of hazardous wastes; and any other matters the COP
deems relevant.
Article 10.2(b) obliges Parties to co-operate in monitoring the effects of the management of
hazardous wastes on human health and the environment, although this does not constitute
third-party monitoring of performance. Article 19 imposes monitoring obligations on the
Parties.137 The provision states that any Party, which has reason to believe that another Party
has breached the Convention, may inform the Secretariat and the Party against whom the
allegations are made.
In Decision V/16, COP-5 (1999) requested the Legal Working Group to develop a draft
decision for the establishment of a compliance mechanism. A Compliance Committee was
established at COP-6 (2002). Its Terms of Reference state that the Committee shall be ‘non-
confrontational, transparent, cost-effective and preventative in nature, simple, flexible,
non-binding and oriented in the direction of helping Parties to implement the provisions
of the Basel Convention’.138 The Committee may receive submissions from the Secretariat
or Parties in relation to non-compliance issues. The Party whose compliance is in question
is given the opportunity to present its responses and comments to the Committee. A Party
that concludes that it is or will be unable to fully implement or comply with its obliga-
tions despite its efforts, may also present a submission to the Committee with regard to
its own compliance difficulties. The Committee investigates the cause of the compliance
difficulties and gives advice, non-binding recommendations or information, after consulta-
tion with the Party, to assist it with resolving these difficulties139. The Committee may also
decide to make recommendations to the COP140.
137 Article 19 is entitled ‘verification’. This report broadly defines verification as a process of checking the accuracy of performance
review reports. Monitoring is concerned with observing a Party’s performance and notifying the relevant Convention body of
breaches. The substance of article 19 accords with the definition of monitoring in this report and is therefore classed as a monitor-
ing obligation.
138 Basel Decision VI/12, Appendix, para 2.
139 Basel Decision VI/12, Appendix, para. 19.
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The Committee also has a mandate to review general issues of compliance141. At COP-7
(2004) Parties approved the 2005-2006 Work Programme for the Compliance Committee,142
focusing on identifying and analysing difficulties relating to: reporting obligations under
the Basel Convention; designation and functioning of national competent authorities and
focal points; and development of national legislation to implement effectively the Basel
Convention.
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As indicated above, the Compliance Committee can take two types of actions in response
to a submission. As a clear illustration of the non-confrontational nature of the non-com-
pliance procedure, the Committee may provide the Party, after coordination with that
Party, with advice, non-binding recommendations and information. These could relate to,
among other things, the establishment and strengthening of domestic or regional regula-
tory regimes, the facilitation of financial and technical assistance, the elaboration of vol-
untary compliance action plans and follow-up arrangements for progress reporting to the
Committee. They aim at resolving the compliance concerns with regard to that Party. For
these actions it is thus not necessary for the Committee to refer the issue to the COP143.
Additionally, the Committee may submit recommendations to the COP, but only if the
Committee considers it necessary to pursue further measures to address a Party’s compli-
ance difficulties, in light of the objective and nature of the mechanism and taking into
account the cause, type, degree and frequency of the difficulties, as well as the capacity
of the Party in question. Measures that may be taken by the COP include prioritization of
technical assistance, capacity building and funding, or a cautionary statement and advice
regarding future compliance.144
Technical Assistance Under Article 10, the Parties must cooperate with each other to
improve and achieve the ESM of hazardous wastes. They must, upon request, make infor-
mation available with a view to promoting the ESM of hazardous and other wastes, and
cooperate in monitoring the effects of managing hazardous wastes on human health and
the environment. Parties must also cooperate in: the development and implementation of
environmentally sound low-waste technologies and the improvement of existing technolo-
gies; the transfer of technology and management systems related to the ESM of hazard-
ous wastes and other wastes; developing technical capacity among Parties that need and
request assistance in this area; and developing technical guidelines.145 Regional centres for
training and technology transfers have been established to assist in training and technol-
ogy transfer.146 The Secretariat has also produced a Manual for the Implementation of the
Basel Convention, which was approved at COP-3, 147 a Guide to the Control System, which
was approved by COP-4, and a Training Manual on Illegal Traffic148, and organises related
141 Basel Decision VI/12, Appendix, para 21.

142 Basel Decision VII/30.
144 Basel Decision VI/12, Appendix, paras 9-20.
145 Basel Article 10.
146 Basel Article 14(1) and Decisions I/13, II/19 and III/19.
147 Basel Decisions I/3 and III/8.
148 Adopted at the fifth session of the Open-ended Working Group of the Basel Convention (decision OEWG-V/9) on behalf of the COP,
as mandated by decision VII/34.

training seminars.149 In addition, technical guidelines on the management of specific waste
streams and on the development of inventories have also been prepared by the Secretariat.
All such materials are available, free of charge, on the website of the Convention (www.
basel.int).
Financial Assistance Parties are also required to consider the establishment of a revolv-
ing fund to provide assistance in emergency cases and, indeed, they requested the Ad
Hoc Working Group of Legal and Technical Experts to consider the elements that would
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be required in establishing such a fund at COP-1 (1992).150 The Basel Convention has
established a Trust Fund for the Implementation of the Convention as well as a Technical
Cooperation Trust Fund to Assist Developing Countries, which was enlarged at COP-6 to
address compliance in cases of emergency.151
Penalties The Convention does not provide for penalties to be imposed on Parties for
non-compliance. It does, however, set out which State (or non-State actor) should be
responsible or liable when the requirements and procedures under the Convention are not
complied with. The Convention relies upon Parties to adopt domestic measures to provide
for penalties for non-State actors for non-compliance
Article 8 imposes a duty on States of export to ensure that hazardous materials are re-
imported where the transboundary movement cannot be completed in accordance with
the terms of the contract. Article 9 defines illegal traffic as transboundary movements that:
occur without notification to all States concerned; occur without the consent of a State
concerned; occur where consent was obtained through fraud or misrepresentation; do
not conform in a material way with the documents; or that contravene the Convention
or the principles of international law. Where the conduct of the exporter results in illegal
traffic, the State of export must ensure the waste is re-imported and otherwise disposed
of in accordance with the Convention. Where the conduct of the importer or disposer is
responsible for illegal traffic, the State of import must ensure the waste is disposed of in an
environmentally sound manner. Where responsibility for illegal traffic cannot be assigned
to either exporter/generator or importer/disposer, Parties shall ensure through co-opera-
tion that the wastes in question are disposed of as soon as possible in an environmentally
sound manner.
At COP-5 (1999) the Parties adopted the Basel Protocol on Liability and Compensation,
which establishes a liability and compensation regime for damage that arises from the
movement of transboundary wastes. As under the Convention, penalties upon non-State
actor are to be established under national law, and to be imposed by national mechanisms.
The Protocol has not yet entered into force.
Disputes relating to the interpretation, application or compliance with the Convention

must initially be resolved through negotiation or any other peaceful means. However, if
149 Basel Decisions 1/20 and III/20.

150 Basel Article 14(2) and Decisions 1/14, II/2, III/3.
151 Basel Decisions II/27, V/18 and VI/14.
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the Parties concerned cannot settle their dispute, the dispute must be submitted to the ICJ
or to arbitration pursuant to Annex VI on Arbitration, provided that the Parties to the dis-
pute consent. A Party may declare that it recognizes as compulsory ipso facto and without
special agreement in relation to any other Party accepting the same obligation the submis-
sion of the dispute to the ICJ and/or to arbitration.152
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152 Basel Decisions I/3 and III/8.

Rotterdam Convention on the Prior Informed Consent Procedure
for Certain Hazardous Chemicals and Pesticides in International
Trade
Overview
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The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous
Chemicals and Pesticides in International Trade (the PIC Convention) entered into force on
24 February 2004. The aim of the Convention is to promote shared responsibility and
cooperative efforts among Parties in the international trade of certain hazardous chemi-
cals in order to protect human health and the environment from potential harm and to
contribute to their environmentally sound use.153 The Convention gives legal force to the
implementation of the Prior Informed Consent procedure (PIC procedure). Through the PIC
procedure, the Secretariat to the PIC Convention acts as a clearing-house through which
decisions of importing countries as to whether they wish to import certain chemicals are
compiled and circulated to other Parties. Parties can also use the Secretariat to exchange
information about characteristics of chemicals to inform an importing Party about their
dangers and use.
The chemicals that are subject to the PIC procedure are listed in Annex III in accordance
with recommendations from the Chemical Review Committee.154 Once a chemical is
listed in Annex III, Parties must communicate their import decisions to the Secretariat.155
The Secretariat then summarises and compiles the responses and provides them to the
other Parties.156 The import decision can be a final decision to consent, to consent subject
to conditions or to not consent. Otherwise, it can be an interim response or a request for
further information.157
There are no performance review self-reporting obligations in the PIC Convention.

However, its working provisions entail detailed operational information exchanges that
embody some information relevant to assessment of performance. For example, when
a country takes action to ban or severely restrict a chemical, its Designated National
Authority (DNA) must inform the Secretariat within 90 days of this action. The Secretariat
153 PIC Convention, Article 1.

154 PIC Convention, Articles 5.5, 6 and 7.
156 PIC Convention, Article 10. Redgwell, C, ‘Regulating Trade in Dangerous Substances’, Kiss, A, Shelton, D and Ishibashi, K, Economic
Globalization and Compliance with International Environmental Agreements, Kluwer Law International, The Hague, 2003, p.83.
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then informs the other Parties.158 (Parties must establish DNAs to be the contact points
for information exchange and for communicating consents under the PIC procedure.159)
Where a chemical that is banned or severely restricted by a Party is exported from another
Party’s territory, the exporting Party must provide exporting notification to the importing
Party, in accordance with Annex V.160 If these notifications were compiled into a database,
they would go some way towards the formation of a perspective to the Parties’ perfor-
mance.
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Article 17 requires the COP to develop and approve procedures and institutional mecha-
nisms for determining non-compliance with the provisions of the PIC Convention and for
treatment of Parties found to be in non-compliance. At COP-1 (2004), the Parties convened
an Open-ended Ad Hoc Working Group on Article 17, with a view to preparing for and
carrying forward deliberations on the issue.161 The Working Group met before and during
COP-2 (2005) but failed to agree on critical issues (i.e. equitable geographical represen-
tation; “triggers” that would lead to NCP; available non-compliance response measures;
and handling of performance information) and, so, will meet and report again to COP-3
(2006).162
The implementation support mechanisms of the PIC Convention may be used targeted to
address non-compliance. However, they tend to be bilateral in operation and are, there-
fore, not ideally suited to deployment under a multilateral NCP.
Technical Assistance Article 10(4) (b) provides that a Party may request assistance in

evaluating whether an Annex III chemical should be imported. Article 11(1)(c) provides
that each exporting Party shall advise and assist importing Parties, upon request and as
appropriate: to obtain further information to help them to take action in respect of imports;
and to strengthen their capacities and capabilities to manage chemicals safely during their
life-cycle.
Article 14 requires each Party to facilitate: the exchange of scientific, technical, economic
and legal information concerning the chemicals within the scope of the Convention; the
provision of publicly available information on domestic regulatory actions relevant to the
objectives of the Convention; and the provision of information to other Parties, directly
or through the Secretariat, on domestic regulatory actions that substantially restrict one or
more uses of the chemical, as appropriate.

161 PIC Convention Decision 1/10.
162 UNEP/FAO/RC/COP.2/19 Report of the Conference of the Parties to the Rotterdam Convention on the Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides in International Trade on the work of its second meeting (12 October
2005 ) Para. 61.

Article 16 states that the Parties shall cooperate in promoting technical assistance for
the development of the infrastructure and the capacity necessary to manage chemicals
to enable implementation of this Convention. Parties with more advanced programmes
for regulating chemicals should provide technical assistance, including training, to other
Parties in developing their infrastructure and capacity to manage chemicals throughout
their life cycle.
Financial Assistance At COP-1 (2004), the Parties called upon the Secretariat to conduct a
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study into the possible options for financial mechanisms to enable developing countries
to implement adequately the provisions of the Convention.163 The study was discussed at
COP-2 (2005) but the Parties could not agree on a choice of financial mechanism, instead
calling on the Secretariat to revisit the options in light of discussion at COP-2 and to report
on the revised study at COP-3 (2006).164
Parties must settle disputes concerning the interpretation or application of the Convention
through negotiation or other peaceful means of their own choice. However, a Party may
declare in writing that, with respect to any dispute concerning the interpretation or appli-
cation of the Convention, it recognises arbitration or the International Court of Justice as a
compulsory means of dispute resolution in relation to any Party accepting the same obliga-
tion. Otherwise, if the Parties to a dispute have not accepted arbitration or the International
Court of Justice, or if they have not been able to settle their dispute within twelve months
following notification by one Party to another that a dispute exists between them, the
dispute must be submitted to a conciliation commission at the request of any Party to
the dispute. The conciliation commission shall render a report with recommendations.165
At COP-1 (2004), Resolution 1/11 adopted an arbitration and conciliation procedure for
purposes of Article 20. These can be found in Annex VI.

164 UNEP/FAO/RC/COP.2/19 Report of the Conference of the Parties to the Rotterdam Convention on the Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides in International Trade on the work of its second meeting (12 October
2005 ) Para. 78.
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Cartagena Protocol on Biosafety to the CBD 2000
Overview
Article 19(3) of the CBD provides that the Parties shall consider the need for a Protocol
to the Convention, particularly in relation to the safe transfer, handling and use of living
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modified organisms (LMOs) resulting from biotechnology that may impact on the conser-
vation and sustainable use of biological diversity. The First Extraordinary Meeting of the
CBD COP adopted the Cartagena Protocol on Biosafety to the Convention on Biological
Diversity on 29 January 2000 in Montreal, Canada. It entered into force on 11 September
2003.
The Protocol aims to ‘contribute to ensuring an adequate level of protection in the field
of the safe transfer, handling and use of LMOs resulting from modern biotechnology’
in accordance with the precautionary approach as set out in Principle 15 of the Rio
Declaration on Environment and Development.166 It applies to the transboundary move-
ment, transit, handling and use of LMOs.167 The Protocol establishes an Advance Informed
Agreement (AIA) procedure (i.e. a prior informed consent procedure), whereby Parties are
required to ensure that their exporters notify the National Authority of the importing Party
prior to the transboundary movement of LMOs that fall within the scope of the Protocol.168
The destination Party must then make a decision, based on a risk assessment, as to whether
to import an LMO.169
Parties are required to monitor the implementation of their obligations under the Protocol
and to submit reports to the CBD COP (serving as the meeting of the Parties (MOP) to
the Protocol) on their implementation efforts.170 Parties are also required to nominate a
national focal point to liaise with the Secretariat.171
Article 34 provides that the COP-MOP must consider and approve at its first meeting
cooperative procedures and institutional mechanisms to promote compliance and address
non-compliance. The COP-MOP established a Compliance Committee and adopted pro-
cedures and mechanisms on compliance in Protocol Decision I/7.
166 Biosafety Protocol, Articles 1 and 10.

167 Biosafety Protocol, Article 4.
169 Biosafety Protocol, Articles 10 and 15.

The Committee’s rules of procedure were adopted in Protocol Decision II/1. Under the
rules of procedure, the Compliance Committee can take various measures to promote
compliance and address non-compliance including: providing advice or assistance; mak-
ing recommendations to the COP-MOP regarding the provision of financial and technical
assistance, technology transfer, training and other capacity-building measures; request the
non-compliant Party to develop a compliance action plan; invite the Party to submit reports;
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and report to the COP-MOP on the non-compliant Party’s efforts to address the issue. The
COP-MOP may, upon the Committee’s recommendation, issue a caution, request the
Executive Secretary to publish cases of non-compliance in the Biosafety Clearing-House
or, in cases of repeated non-compliance, take such measures as to be decided at COP-
MOP-3. Article 27 states that the COP-MOP will adopt a process in respect of liability and
redress for damage resulting from the movement of LMOs.
Technical Assistance Article 20 establishes a Biosafety Clearing-House to facilitate the

exchange of scientific, technical, environmental and legal information on, and experience
with LMOs, and to assist Parties to implement the Protocol. It serves as a means through
which information on import bans and conditions is made available to Parties. Parties are
required to make available to the Clearing-House information on: existing laws and guide-
lines; bilateral, regional and multilateral agreements; risk assessments or environmental
reviews of LMOs; decisions about the importation or release of LMOs; and performance
review reports submitted pursuant to Article 33. There are exceptions for confidential
information.172
Article 22 specifically deals with capacity building. It states that Parties shall cooperate in
developing and strengthening human resources and institutional capacities in biosafety in
developing Parties, either through existing organisations or the involvement of the private
sector. Cooperation in capacity building shall include scientific and technical training in
the proper and safe management of biotechnology, and in the use of risk assessment and
risk management for biosafety, and the enhancement of technological and institutional
capacities in biosafety. Article 11.9 invites Parties to indicate their needs for financial and
technical assistance and capacity building with respect to LMOs intended for direct use
as food or feed or for processing. Parties must cooperate to meet those needs pursuant to
Articles 22 and 28. The COP-MOP must take the needs of developing Parties into account
in providing funding guidance to the financial mechanism, which is discussed below.173
The guidance to the financial mechanism of the Convention, as set out in relevant COP
decisions, applies to the provisions of Article 28.
At COP-MOP-1 (2004), the Parties endorsed an Action Plan for Building Capacities for the
Effective Implementation of the Protocol and a Coordination Mechanism.174
Financial Assistance The Protocol adopts the financial mechanism created under Article
21 of the CBD as its own financial mechanism.175 The COP-MOP prepares draft guidance
172 Biosafety Protocol, Article 21

173 Biosafety Protocol, Article 28
174 Biosafety Protocol, Decision I/5
175 Biosafety Protocol, Article 28.2.
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for financial support for consideration by the CBD COP; so that such guidance might be
included in the latter’s guidance to the financial mechanism.176 Following COP-MOP-1
(2004), the CBD COP provided detailed guidance to the funding mechanism in Decision
VII/20. In Protocol Decision II/5, the COP-MOP encouraged the GEF and the Executive
Secretary to the CBD to continue their collaborative support for the Protocol’s implementa-
tion. The GEF has already provided funding to assist countries to prepare for the Protocol’s
entry into force. A UNEP-GEF project provided developing countries with assistance in
developing biosafety frameworks and participating in the Biosafety Clearing-House.177
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Penalties In accordance with Article 27 of the Biosafety Protocol, COP-1 established a
negotiation process to adopt a liability protocol. Negotiations are currently ongoing.
The Protocol adopts the CBD dispute resolution procedures by virtue of Article 32 of the
Protocol (CBD provisions relating to Protocol apply to Protocol) and Article 27.5 of the
CBD, which states that the dispute resolution provisions of the CBD apply to any Protocol
except as otherwise provided in the Protocol concerned.
176 Biosafety Protocol, Article 28.3.

177 CBD Website, <http://www.biodiv.org/biosafety/issues/finance.aspx> (8/9/05).

Stockholm Convention on Persistent Organic Pollutants 2001
Overview
The Stockholm Convention on Persistent Organic Pollutants (POPs Convention) entered

into force on 17 May 2004. It aims to protect human health and the environment from
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the most dangerous persistent organic pollutants, including the ‘dirty dozen’, by helping
Parties to switch to safer alternatives and to clean up existing stockpiles.178 The Convention
divides chemicals in three groups: intentionally produced chemicals; unintentionally pro-
duced chemicals; and stockpiles. Annexes A and B list intentionally produced chemicals,
which are mainly pesticides. Annex A deals with chemicals which are to be eliminated
while Annex B deals with those which are to be restricted. Parties are required to prohibit
and/or take the necessary measures to eliminate the production, import and export of
Annex A chemicals and to restrict the production and use of Annex B chemicals.179 In addi-
tion, Annex A or B chemicals may only be imported or exported for their environmentally
sound disposal or for a use that is permitted for that Party under Annexes A or B.180
Annex C lists persistent organic pollutants, which are formed and released unintentionally
from anthropogenic sources. Pursuant to Article 5, Parties must take measures to reduce
the total releases derived from anthropogenic sources of Annex C chemicals, with the
goal of their continuing minimisation and ultimate elimination. Parties are also obliged
to reduce or eliminate releases from stockpiles and wastes of Annex A, B and C chemi-
cals.181 Wastes containing POPs are to be handled, collected, transported and stored in an
environmentally sound manner and in accordance with international rules (e.g. the Basel
Convention).182
Parties must provide the COP with reports on their implementation and on the effective-
ness of their implementation measures in meeting the Convention’s aims. They must also
provide the Secretariat with statistical data on their total quantities of production, import
and export of the listed chemicals or reasonable estimates and a list of States from which
or to which it has imported or exported each substance.183 This reporting obligation ties in
with the Parties’ obligation to develop and endeavour to implement a plan for the imple-
mentation of their obligations under the Convention, submit that plan to the COP within
178 POP Convention, Article 1 and Greg’s chapter.

179 POP Convention, Article 3(1).
180 POP Convention, Article 3(2) and (3).
181 POP Convention, Article 6.
182 POP Convention, Article 6(1)(d).
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two years of the date on which the Convention enters into force for it to review and update
the plan. Interim guidelines have been developed to assist Parties.184
Although primarily related to scientific baseline information, rather than performance

review information, Parties are to undertake appropriate monitoring of POPs, including
monitoring of their sources and releases into the environment; presence, levels and trends
in humans and the environment; environmental transport, fate and transformation; effects
on human health and the environment; socio-economic and cultural impacts; release
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reduction and/or elimination and harmonized methodologies.185
The COP is required to develop and approve procedures and institutional mechanisms for
determining non-compliance with the provisions of the Convention and for appropriate
penalties.186
Although not yet specified under its NCP, the POPs Convention’s provisions that support
implementation are well adapted for use in a targeted fashion as non-compliance response
mechanisms.
Technical Assistance The Convention provides for the provision on technical assistance
to developing Parties.187 Technical assistance includes technical assistance for capacity-
building relating to the implementation of the obligations under the Convention.188 Under
Article 9, Parties must facilitate or undertake the exchange of information relevant to the
reduction or elimination of the production, use and release of POPs and alternatives to
POPs. The Secretariat serves as a clearing-house mechanism for information on POPs
including information provided by the Parties, intergovernmental organisations and NGOs.
Parties must encourage and/or undertake appropriate research, development, monitoring
and cooperation pertaining to POPs. In doing so, they must: support and develop interna-
tional programmes or organisations aimed at defining, conducting, assessing and financing
research and data collection and monitoring; support national and international efforts to
strengthen scientific and technical research capabilities; and consider the concerns and
needs of developing Parties with regard to technical and financial resources with a view to
improving their capability to participate in the above mentioned efforts.189
Financial Assistance Parties undertake to provide financial support to national activities that
are geared towards implementing the Convention. Developed Parties undertake to provide
financial resources to developing Parties in accordance with the financial mechanism
184 Article 7(1). See also POP Website, <http://www.pops.int/documents/implementation/nips/> (8/9/05).

189 POP Convention, Article 11(2)(a)-(c).

established under Article 13(6) or to provide financial resources through other bilateral,
regional and multilateral means.190 At their first meeting, Parties must adopt and provide
guidance to the financial mechanism.191 In the interim, the GEF is the principal entity
entrusted with the operations of the financial mechanism.192 The GEF and the Swedish
Government have funded workshops to assist Parties in strengthening their national chemi-
cals management programs with respect to the implementation and ratification of this
Convention.193 At COP-1 (2005), Parties requested the GEF to develop a new focal area
and operational procedures to support the implementation of the Convention.194
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(d) Dispute settlement
Parties must settle the disputes through negotiation or other peaceful means at first
instance. Parties have the option of accepting arbitration (in accordance with procedures
to be adopted by the COP) or the International Court of Justice as compulsory means
of dispute resolution. These can only be used in relation to Parties accepting the same
obligation. Where Parties do not accept these means, or if they have not been able to
settle the dispute within 12 months following notification by one Party to another that a
dispute exists between them, the dispute must be submitted to a conciliation commission.
Procedures relating to the conciliation commission are to be included in an annex to be
adopted by COP-2.195
190 POP Convention, Article 13(1)-(3).

191 POP Convention, Article 13(7).
193 POP Convention Website, <http://www.pops.int/documents/implementation/gef/> (8/9/05).
194 POP Convention Decision I/2.
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3. Atmosphere
Vienna Convention for the Protection of the Ozone Layer 1985
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Overview
The Vienna Convention for the Protection of the Ozone Layer entered into force on 22
September 1988. Parties are obliged to take measures to protect human health and the
environment against adverse effects likely to result from human activities that modify the
ozone layer.196 There are no targets or timetables for action. Instead, there is an outline of
general obligations on the Parties, which focus on obligations to undertake research on
the ozone layer, in particular on the effects of human activities on the ozone layer and
how these may be addressed.197 It establishes a framework for future international legal
measures to protect the ozone layer by providing for future protocols.198
Parties must transmit to the COP information on the measures adopted by them in the
implementation of the Convention and of protocols to which they are Party.199 COP-1
(1989) decided that each Party shall submit these reports every two years and shall include
the socio-economic and commercial information on the substances referred to in Annex I
and directed the Secretariat to prepare a format for reporting.200
Other extensive information collection obligations are related to scientific observations of

various aspects of the ozone layer, human effects upon it and the impacts of modification
of the ozone layer, rather than to performance review. For example, Parties also agree,
under Article 3, to promote or establish joint or complementary programmes for systematic
observation of the ozone layer and in ensuring the collection, validation and transmission
of research and observational data through appropriate world data centres.201 At COP-3
(1993), the Parties decided that for the purposes of Article 3 of the Vienna Convention,
which deals with cooperation for research and systematic observations, it would be ade-
quate for the Parties to the Convention to report data under the Montreal Protocol on all
substances controlled by the Protocol.202
196 Vienna Convention, Article 2(1).

197 Vienna Convention, Articles 2 and 3.
198 Vienna Convention, Article 8.
200 Vienna Convention Decision I/2.
202 Vienna Convention Decision III/4.

There are no provisions or COP decisions for the adoption of a non-compliance proce-
dure.

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In the absence of any NCP, it is noted here that there are mechanisms in place under the
Vienna Convention for the mutual support of Parties in their implementation efforts. These
are in place to assist with the primary task of implementation and are not in fact utilised
non-compliance response mechanisms. They are noted here merely to indicate that there
is assistance available to Parties for implementation.
COP-2 (1991) noted that the information exchange obligations under Annex II of the
Convention would largely be fulfilled by Parties reporting on data concerning the han-
dling of ozone depleting substances each calendar year and by exchanging information
and reporting on scientific activities in accordance with the Montreal Protocol. The COP
called on all Parties to the Convention, whether or not Parties to the amended Protocol, to
provide such data and information.203
Technical Assistance Under Article 4, Parties must facilitate and encourage the exchange
of scientific, technical, socio-economic, commercial and legal information, which is
elaborated in Annex II. Annex II, paragraph 1 states that Parties recognise that the collec-
tion and sharing of information is an important means of implementing the Convention
and that Parties must therefore exchange scientific, technical, socio-economic, business,
commercial and legal information. Annex II paragraphs 3 to 6 elaborate on the type of
scientific, technical, socio-economic and legal information to be provided. Parties must
cooperate in promoting the development and transfer of technology and knowledge, par-
ticularly though: facilitation of the acquisition of alternative technologies by other Parties;
provision of information on alternative technologies and equipment; supplying necessary
equipment and facilities for research and systematic observations; and appropriate training
of scientific and technical personnel.204
Financial Assistance COP-1 (1989) established a Trust Fund (later to become the
‘Multilateral Fund’) and Parties were invited to make voluntary contributions to it.205 The
Parties agreed to cooperate to enhance the capabilities of developing countries to contrib-
ute to ozone science research through the organisation of workshops and the identification
of appropriate institutions for scientific and financial assistance.206 At COP-4 (1996), the
Parties invited the GEF to support the monitoring of ozone and UV radiation and related
research in developing countries.
203 Vienna Convention Decision II/2.

204 Vienna Convention, Article 4(2).
205 Vienna Convention, Decision I/9.
206 Vienna Convention Decision I/5.
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Parties are to resolve disputes concerning the interpretation or application of this

Convention by negotiation. If negotiations fail, they may jointly request mediation by a
third Party. Parties may declare in writing that, for a dispute not resolved through nego-
tiation or mediation, they accept arbitration (with procedures that were adopted by the
COP207) or the International Court of Justice as compulsory means of dispute resolution.
Otherwise, the dispute will be submitted to conciliation. A conciliation commission will
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be created upon the request of one of the Parties to the dispute. The commission renders
‘a final and recommendatory award, which the Parties shall consider in good faith.’208
207 Vienna Convention, Decision I/7.


Montreal Protocol on Substances that Deplete the Ozone Layer
1987
Overview
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The Montreal Protocol on Substances that Deplete the Ozone Layer (the Montreal
Protocol) entered into force on 1 January 1989. The Protocol lists controlled substances
in Annexes A (CFCs and Halons), B (Other halogenated CFCs, carbon tetrachloride and
methyl chloroform), C (Hydrochloroflurocarbons and Hydrobromoflurocarbons) and E
(Methyl bromide). Annex D contains a list of products containing controlled substances
specified in Annex A.
Articles 2A to 2I set out the targets that Parties must achieve with respect to each of
these controlled substances and the period of time within which the targets must be met.
Developing Parties are given a grace period, allowing a delay of 10 years before being
required to take steps to meet these targets.209 Article 4 bans the import of the control-
led substances listed in the Annexes with non-Parties. However, Article 4B requires each
Party to establish and implement a licensing system for the import and export of new,
used, recycled and reclaimed controlled substances in the Annexes, by 1 January 2000
or within three months of the date of entry into force of the Article for it, whichever is the
later. Article 4A provides that where a Party is unable, despite having taken all practicable
steps to comply with its obligations under the Protocol, to cease production of a controlled
substance for domestic consumption by its specified phase-out date, other than for uses
agreed by the Parties to be essential, it must ban the export of used, recycled and reclaimed
quantities of that substance, unless it is being exported for the purpose of destruction.
Each Party must provide statistical data to the Secretariat on its annual production of each
of the controlled substances. Data must also be provided on amounts of each substance
used for feedstocks, destroyed by technologies approved by the Parties, or imported from
and exported to Parties and non-Parties for the year during which provisions concerning
the substances entered into force for that Party, and for each year thereafter.210 Parties must
provide statistical data on the annual imports and exports of each of the controlled sub-
stances in Group II of Annex A and Group I of Annex C that have been recycled.211
209 Montreal Protocol, Article 5.

210 Montreal Protocol, Article 7. The Parties’ reduction targets in relation to controlled substances are calculated as a percentage
of baseline figures. Most controlled substances have a baseline set in 1986. National data for baselines must be provided to the
Secretariat within three months of becoming a Party (Article 7).
211 Montreal Protocol, Article 7(3).
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As well as the annual reports, Parties must submit to the Secretariat every two years a
summary of the research, development, public awareness and exchange of information
activities that they have undertaken pursuant to Article 9.212
The Montreal Protocol was the first MEA to design a NCP. Under Article 8, Parties were
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obliged to consider and approve procedures and institutional mechanisms for determin-
ing non-compliance. In 1989, Decision I/8 established an Open-ended Ad Hoc Working
Group of Legal Experts to develop NCPs. The Parties approved an interim mechanism for
determining non-compliance, namely, an Implementation Committee, and directed the
Working Group to elaborate on these procedures by MOP-4 (1992).213 The interim NCP
provided that any Party and the Secretariat could report a non-compliant Party to the
Implementation Committee. The non-compliant Party would then be given notice of the
allegation and an opportunity to respond. The Committee was to seek an amicable resolu-
tion to the situation and report to the MOP.214 The MOP could decide upon steps for full
compliance or request the Committee to make recommendations.
A permanent non-compliance mechanism was adopted at MOP-4 (1992).215 It continued

the Implementation Committee as the body to receive and consider reports of non-compli-
ance. As with the interim procedure, non-compliant Parties are given notice of the allega-
tions and an opportunity to respond and the Committee must report any recommendations
to the MOP.
The permanent non-compliance mechanism was reviewed and amended at MOP-10. The
amendments, inter alia, required the Implementation Committee to report persistent pat-
terns of non-compliance to the MOP and make appropriate recommendations in order to
maintain the integrity of the Protocol.216
In response to the recommendations of the Implementation Committee, the MOP may

authorise any of the following: assistance for the collection and reporting of data; techni-
cal assistance; technology transfer and financial assistance; information transfer and train-
ing; the issuing of a caution; or the suspension of specific rights and privileges under the
Protocol.
Technical Assistance Article 9 states that the Parties shall cooperate in promoting research,
development and the exchange of information on: best technologies for improving the
containment, recovery, recycling or destruction of controlled substances or reducing their
emissions; possible alternatives to controlled substances, to products containing such
212 Montreal Protocol, Article 9(3).

213 Montreal Protocol Decisions II/5 and III/2.
214 YBIEL, Vol.1, 1990, p.78.
215 Montreal Protocol Decision IV/5.
216 Montreal Protocol Decision X/10.

substances and to products manufactured with them; and the costs and benefits of rel-
evant control strategies. Parties must also cooperate in promoting public awareness of the
environmental effects of the emissions of controlled substances. Article 10A provides that
each Party shall take steps to ensure that the best available environmentally safe substitutes
are transferred to developing Parties and that the transfers occur under fair and favourable
conditions.
Financial Assistance At MOP-1 (1989), the Parties agreed to consider at MOP-2 (1990) the
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development of a programme which would include workshops, demonstration projects,

training courses, the exchange of experts and the provision of consultants on control
options, taking into account the special needs of developing countries as well as the explo-
ration of ways to promote the exchange and transfer of environmentally sound substitutes
and alternative technologies.217 This issue was primarily addressed through the amendment
of Article 10.218 Amended Article 10 establishes a financial mechanism. It requires that
Parties shall establish a mechanism for the purposes of financial and technical coopera-
tion, including the transfer of technologies, to enable developing Parties to comply with
control measures. This financial mechanism includes a Multilateral Fund, which finances,
inter alia, clearing-house functions to facilitate technical cooperation, distribute informa-
tion, hold workshops and training sessions and facilitate and monitor other multilateral,
regional and bilateral cooperation for developing Parties. The Multilateral Fund is financed
by developed Parties and controlled by its own Executive Committee, which is elected on
a geographically representative basis by the MOP. It works in cooperation and with the
assistance of the World Bank, UNEP, UNDP or other appropriate agencies.
Penalties The Montreal Protocol was the first MEA to incorporate multilaterally determined
penalties into its range of non-compliance responses. Under the NCP the MOP can issue
warnings, although this has happened only once. The power to suspend rights and privi-
leges includes those concerning production, consumption, trade, transfer of technology,
assistance for industrial rationalisation, financial mechanism and institutional arrange-
ments. The suspension of rights has never been exercised.
The dispute resolution procedure in Article 11 of the Vienna Convention applies to the
Protocol by virtue of Article 11(6) of the Convention, which states that the provisions of
Article 11 apply with respect to any protocol. Article 14 of the Protocol provides that
the provisions of the Convention relating to its protocols shall apply to the Montreal
Protocol.
217 Montreal Protocol Decision I/4.

218 Montreal Protocol Decision II/2.
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United Nations Framework Convention on Climate Change 1992
Overview
The United Nations Framework Convention on Climate Change (UNFCCC) entered into
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force on 21 March 1994. It aims to achieve stabilisation of greenhouse gas concentrations
in the atmosphere at a level that would prevent dangerous anthropogenic interference with
the climate system.219 Such a stabilisation level should be achieved ‘within a time-frame
sufficient to allow ecosystems to adapt naturally to climate change, ensure food produc-
tion is not threatened and to enable economic development to proceed in a sustainable
manner.’220 The level and the timeframe are omitted from the provision.
All Parties have general obligations to develop domestic and, if possible, regional pro-
grammes and measures to mitigate climate change; promote and cooperate in the devel-
opment, application and diffusion of technologies, practices and processes that control,
reduce or prevent anthropogenic emissions of greenhouse gases outside the scope of the
Montreal Protocol; promote conservation and enhancement of sinks and reservoirs of all
greenhouses gases outside the scope of the Montreal Protocol; cooperate in preparing for
adaptation to climate change; and promote scientific and technical cooperation.221
Developed countries are required to lead climate change mitigation by adopting policies
and measures limiting anthropogenic greenhouse gas emissions. Under Article 4.2, these
policies and measures should ‘recognise’ that, a return to ‘earlier emission levels’ by the
year 2000 would ‘contribute’ to modification of longer-term climate change trends.222
The year 2000 passed without any Party achieving the Convention’s stated aim. However,
the Parties were to ‘review the adequacy’ of the aim under Article 4.2 at their first
Conference.223 The result of that review was the 1997 Kyoto Protocol, discussed below.
The guiding legal principles for implementation are set out in Article 3 and include:
inter-generational equity; common but differentiated responsibility between developed
and developing countries; the precautionary principle; sustainable development; and an
open international economic system. Of these principles, the most clearly reflected in the
UNFCCC text is differentiated responsibility. Differentiated responsibilities for developed
Parties are specified in two matters. Special obligations are imposed upon them to: (1)
adopt ‘policies and measures’ to reduce their greenhouse gas emissions under Article
4.2; and (2) provide ‘new and additional financial resources’ to developing Parties under
Article 4.3. Annex I contains a list of the developed countries that includes most ‘western’
countries and ex-Soviet bloc countries. Annex II lists from among those Annex I Parties
only the ‘western’ countries that are obliged to provide financial and technological assist-
ance.
219 UNFCCC, Article 2.

220 UNFCCC, Article 2.
221 UNFCCC, Article 4.1.
222 UNFCCC, Article 4.2(a).
223 UNFCCC, Article 4.2(d).

Article 12 requires all Parties to submit: a national inventory of anthropogenic emissions by

sources and removals by sinks of all greenhouse gases (but not controlled by the Montreal
Protocol) using agreed methodologies; a general description of their steps to implement
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the aims of the Convention; and any other relevant information. This obligation falls upon
both developed and developing country Parties but, as indicated below, the former are to
assist the latter to meet their inventory obligations. Developed country Parties must also
provide a detailed description of policies and measures that they have adopted to imple-
ment their commitment under Article 4.2. Developed Parties, particularly each listed in
Annex II, must provide information on measures that they have taken in accordance with
their assistance commitments in Article 4.3, 4.4 and 4.5. At COP-5 (1999), a consultative
group of experts was established to assist developing countries in meeting their reporting
obligations.224
Developed Parties must submit information on greenhouse gas emissions and remov-
als on an annual basis.225 Least-developed countries (LDCs) submit National Adaptation
Programmes of Action (NAPAs) on their needs and priorities for adaptation.226 Article 4.9
and decision 5/CP.7 recognised the specific needs and special situations of the LDCs
with regard to funding and transfer of technology. That decision established an LDC work
programme that included the development of NAPAs. Decision 28/CP.7 sets out the guide-
lines while decision 29/CP.7 establishes an LDC Expert Group (LEG) to provide guidance
and advice on the preparation and implementation of NAPAs.
The UNFCCC may authorize verification missions to review implementation.227
Article 13 provides that the COP shall consider the establishment of a multilateral con-
sultative process (MCP) for the resolution of questions regarding implementation. Decision
10/CP.4 established the multilateral consultative process in the form of a Multilateral
Consultative Committee. Parties may submit questions concerning their own or another
Party’s implementation to the Committee, which may then provide advice or recommenda-
tions on the procurement of technical and financial resources for the resolution of a Party’s
difficulties or provide advice on the compilation and communication of information. The
conclusions and recommendations must be sent to the Party concerned for comment.
Although COP-5 was supposed to bring the multilateral consultative process into opera-
224 UNFCCC, Decision 8/CP.5.

225 UNFCCC, Article 4(1). See also UNFCC Website, <http://unfccc.int/national_reports/items/1408.php> (8/9/05).
226 See also UNFCC Website, <http://unfccc.int/national_reports/items/1408.php> (8/9/05).
227 See Wang, X and Wiser, G, ‘The Implementation and Compliance Regimes under the Climate Change Convention and its Kyoto
Protocol’, Vol. 11(2) Review of European Community and International Environmental Law, 2002, pp.183, 185.
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tion following resolution of outstanding issues regarding the composition of the MCP, the
COP has not yet done so.228
The technical or financial resources in relation to which the MCP is to advise are well
established under the UNFCCC.
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Technical Assistance At COP-7 and, as a part of the Marrakesh Accords, the Parties agreed
to work together on a set of technology transfer activities. These activities have five main
themes: technology needs and needs assessments; technology information; enabling envi-
ronments; capacity building; and mechanisms for technology transfer.229 The Marrakesh
Accords also provide for the establishment of an Expert Group on Technology Transfer
(EGTT) to facilitate and advance technology transfer activities.230 Further, the Secretariat
has developed a clearing-house mechanism to facilitate the flow of, and access to, infor-
mation on developing and transferring safe technologies.231
Financial Assistance Developed Parties, specifically those listed in Annex II, must addition-
ally provide ‘new and additional financial resources’ to developing countries to meet the
full implementation costs of the Convention.232 These concern inventories and any vol-
untary measures the developing countries take towards mitigation of the greenhouse gas
emissions. Further, they must take all practicable steps to promote, facilitate and finance,
as appropriate, the transfer of, or access to, environmentally sound technologies and
know-how to other Parties, particularly to developing countries to enable them to imple-
ment the provisions of the Convention.233
Article 11 of the Convention establishes a financial mechanism for the provision of finan-
cial resources to developing countries on a grant or concessional basis, including for the
transfer of technology. The operations of the financial mechanism are entrusted in the COP
to develop. The provision also states that developed Parties may also provide, and develop-
ing country Parties avail themselves of, financial resources related to the implementation
of the Convention through bilateral, regional and other multilateral channels.
COP-4 designated the GEF as an operating entity of the financial mechanism on an ongo-
ing basis.234 The Marrakesh Accords adopted at COP-7 expanded the scope of activities to
which the GEF may provide funding to include activities to adapt to climate change and to
build their national capacities to address it.235 COP-4 also established the Special Climate
228 See Wang, X and Wiser, G, ‘The Implementation and Compliance Regimes under the Climate Change Convention and its Kyoto
Protocol’, Vol.11 (2) Review of European Community and International Environmental Law, 2002, p.186 and Decision.
229 UNFCCC Website, <http://unfccc.int/cooperation_and_support/technology/items/1126.php> (8/9/05).
230 UNFCCC Decision 4/CP.7.
231 UNFCCC Website, <http://unfccc.int/cooperation_and_support/technology/items/1126.php> (8/9/05).
235 UNFCCC Website, <http://unfccc.int/cooperation_and_support/funding/items/2807.php> (8/9/05).

Change Fund, the Least Developed Countries Fund and the Adaptation Fund, which are
separate from the GEF Trust Fund but managed by the GEF.236
Parties must resolve disputes concerning the interpretation or application of the Convention
by negotiation or other peaceful means. They may declare in writing that they accept
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the arbitration procedures adopted by COP-1,237 or that they accept submission to the
International Court of Justice as compulsory means of dispute resolution. Otherwise, the
dispute will be submitted to compulsory conciliation after twelve months following noti-
fication by one Party to another that a dispute exists between them. A conciliation com-
mission will be created to render ‘a final and recommendatory award, which the Parties
shall consider in good faith.’238
236 The Adaptation Fund is relevant to the Kyoto Protocol. See UNFCCC Website,
<http://unfccc.int/cooperation_and_support/funding/items/2807.php> (8/9/05).
237 Kyoto Protocol Decision I/7.
238 Kyoto Protocol, Article 11.
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Kyoto Protocol to the United Nations Framework Convention on
Climate Change 1997
Overview
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The third Conference of the Parties to the UNFCCC adopted the Kyoto Protocol to the
Climate Change Convention on 11 December 1997. The Kyoto Protocol entered into force
on 16 February 2005.
The Protocol quantifies emission limitations and reduction commitments of the green-
house gases listed in Annex A for the Parties listed in Annex I of the UNFCCC. While each
Annex I Party is assigned an individual target amount, the aim is that the aggregate Annex I
targets will reduce overall emissions of such gases by at least 5 per cent below 1990 levels
by the commitment period of 2008 to 2012.239
Article 2 outlines the policies and measures that may be implemented by each Party to
achieve their commitments, elaborating on UNFCCC Article 4.1. These include: protec-
tion and enhancement of sinks and reservoirs of greenhouse gases; promotion of sustain-
able forms of agriculture; and development of sources of renewable energy. Although the
Protocol was intended to fill in the regulatory framework of the UNFCCC, it was insuf-
ficient of its own and further regulatory development was required for the Protocol itself
once the text had been adopted. In 1998 UNFCCC COP-4 adopted the ‘Buenos Aires Plan
of Action,’ which sought to operationalize the Protocol.
The Protocol provides for a number of flexibility mechanisms to assist Annex I Parties to
achieve their emission reduction commitments.
Annex I Parties may reach agreement to meet commitments jointly, thus adjusting their
relative emissions commitments between themselves, provided their total combined emis-
sions do not exceed the sum of the amounts set out for them in Annex B.240 This mechanism
is useful only in the context of a highly integrated economic bloc such as the European
Union, which seeks to protect industrial development within particular members.
The Protocol provides for joint implementation projects that enhance sinks or reduce emis-
sions to be undertaken jointly by Annex I Parties. The resultant ‘emission reduction units’
can be transferred from the project’s host country to benefit the project’s investor country.
However, any such project must be supplemental to domestic actions for the purposes of
achieving the commitments under Article 3.241
239 Kyoto Protocol, Article 3.1.


The Protocol establishes the Clean Development Mechanism, which allows Annex I Parties
to invest in projects that enhance sinks or reduce emissions in non-Annex I countries.242
Annex I Parties may use the certified emission reductions accruing from such projects to
contribute to compliance with their commitments under Article 3.
Annex I Parties are also allowed to trade emissions reductions between them.243 Thus,
where a developed country has reduced its emissions beyond its obligations as set out in
Annex B, it is in ‘credit’. It can then sell this credit to a developed country that would find
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it more expensive to reduce its emissions.
Accurate reporting is essential under the Kyoto Protocol, given the quantified nature of its
targets. Its performance review information requirements are the most robust and sophis-
ticated among all current MEAs.
There are different reporting obligations for Annex I and non-Annex I Parties. Article 7 pro-
vides for regular self-reporting by UNFCCC Annex I Parties. It states that each Party shall,
inter alia, submit the necessary supplementary information to demonstrate compliance
with its commitments in its annual emissions inventory and its national communication
submitted under the UNFCCC. Reporting guidelines were adopted by the UNFCCC COP
244
. The reporting requirements of the Protocol supersede the reporting requirements under
the UNFCCC for Annex I Parties to both instruments. Closely linked, are the obligations to
establish national systems for estimating emissions and national registries to track transac-
tions in emissions units.245
In addition, the Marrakesh Accords require Annex I Parties to submit three additional
reports: a report at the beginning of the commitment period to determine allocated target
amounts; a report at the end of the commitment period to assess compliance with Article
3; and a report on ‘demonstrable progress’ under Article 3.2, which is to be submitted
approximately half-way through the commitment period.246
Article 8 establishes a third-party process for independent review of self-reported infor-

mation. This has been mandatory for Annex I Party inventories since 2003.247 The process
aims at providing a ‘thorough and comprehensive technical assessment of all aspects of
the implementation by a Party to this Protocol’ and should be completed within one year
of submission of the national report to the Secretariat. There are three stages in the review
process. First, there is an ‘initial check’ to verify whether the inventory is complete and
244 UNFCCC Decisions 22/CP.7 and 22/CP.8.
245 Kyoto Protocol, Article 5.1 and Decision 19/CP.7.
246 Yamin, F and Depledge, J, The International Climate Change Regime Guide to Rules, Institutions and Procedures (Cambridge University
Press, Cambridge, 2004) p.344.
247 http://unfccc.int/national_reports/annex_i_ghg_inventories/review_process/items/2762.php (3/11/05).
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properly formatted.248 A ‘synthesis and assessment’ follows, which involves compiling and
comparing inventory information.249 The final stage is individual review, which involves
an inventory review by an expert review team or experts in their home country.250 Expert
review teams are led by two experts, one from a non-Annex I Party and one from an Annex
I Party.251 Essentially, the Protocol inherits the UNFCCC’s monitoring and verification pro-
cedures. However, the Protocol makes provision for the elaboration of such procedures
following the first COP-MOP.252
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Non-Annex I Parties also have reporting obligations: they must include details about their
programs and activities undertaken pursuant to Article 10 in their national communica-
tions.253 (Annex I Parties also have this obligation.254)
The NCP under the Protocol is the most elaborate of those adopted under MEAs thus far.
Article 18 provides that the UNFCCC COP, which serves as the MOP to the Protocol,
shall approve appropriate and effective procedures and mechanisms to determine and to
address cases of non-compliance with the Protocol. The NCP was adopted at the UNFCCC
COP-7 (2001).255 It entered into force at the first meeting of the Protocol’s COP-MOP
(2005) and its Compliance Committee met for the first time in 2006.
The NCP may be triggered by a Party with respect to itself, or by another Party, by the
Secretariat or by Expert Review Teams under Article 8. Its functional body is a Compliance
Committee consisting of two branches: the Facilitative Branch and the Enforcement
Branch.256
The Facilitative Branch is responsible for facilitating the Protocol’s implementation and
determines whether Annex I Parties are complying with the following obligations:257
n Qualified emissions limitation or reduction commitments under Article 2;

n Reporting requirements and methodologies under Articles 4, 5.1, 5.2 and 7.1;
and
n Eligibility requirements to access the mechanisms under Articles 6 (emission
reduction units), 12 (clean development mechanism) and 17 (emissions
trading).

252 See also Articles 6.2, 12.7 and 17.
253 Kyoto Protocol, Article 10.1(f).
254 Kyoto Protocol, Article 10(b) (ii).
256 UNFCCC Website, <http://unfccc.int/kyoto_mechanisms/compliance/items/3024.php> (8/9/05).
257 Yamin, F and Depledge, J, The International Climate Change Regime Guide to Rules, Institutions and Procedures, Cambridge University
Press, Cambridge, 2004, p.393.

Eligibility to access the mechanism is determined by the following criteria: whether the
Party has ratified the Protocol; its calculated assigned amount of GHG emissions; whether
it has developed a national system for estimating emissions and removals of GHG within
its jurisdiction; whether the Party has established a national registry to record and monitor
the movement of certain substances; and meeting the annual reporting requirements on
emissions and removals.258
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The Facilitative Branch may provide advice, facilitate the provision of technical and
financial assistance including technology transfer and capacity building (having regard
to UNFCCC Articles 4.3, 4.4 and 4.5) or provide recommendations to the non-compliant
Party (having regard to Article 4.7 of the UNFCCC).259
Technical Assistance Article 10 reaffirms and expands upon the existing commitments
under UNFCCC Article 4.1. It requires Parties to take into account UNFCCC Articles 4.3,
4.5 and 4.7 in formulating cost-effective national and regional programmes to improve
the quality of local emission factors and to mitigate the effects of climate change. Parties
must cooperate in the promotion of effective modalities for the development, promotion,
facilitation and financing of the transfer of, or access to, environmentally sound technolo-
gies pertinent to climate change.260 Parties must also cooperate in scientific and technical
research and in the development of training and development programmes, including
capacity building.261
Financial Assistance Article 11 incorporates the financial mechanism under the UNFCCC
to assist developing countries to meet their commitments under UNFCC Article 4.1. Article
11.2 provides that developed Parties and Annex II Parties must provide new and addi-
tional financial resources to meet the agreed full costs incurred by developing Parties in
implementing their commitments under UNFCCC Article 4.1, as now covered by Article
10(a) of the Protocol. The guidance provided to the financial mechanism (i.e. the GEF)
under the UNFCCC, applies to all relevant respects to Article 11.262 As previously noted,
the Marrakesh Accords established an Adaptation Fund, reflecting the need for additional
funding for the climate change focal area of the GEF.263 The Adaptation Fund was under the
guidance of the UNFCCC COP until the entry into force of the Protocol.264 The Adaptation
Fund is to be operated by the GEF but is separate from the GET Trust Fund.265
258 http://unfccc.int/kyoto_mechanisms/items/1673.php (3/11/05).

260 Kyoto Protocol, Article 10(c).
261 Kyoto Protocol, Article 10(d) and (e).
262 Kyoto Protocol, Article 11.2.
Press, Cambridge, 2004, p.290. See also UNFCCC Decision 7/CP.7, paragraph 1.
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Penalties The Kyoto Protocol sets out the most prescriptive and potentially costly penal-
ties for non-compliance under current MEAs. However, to the extent that they purport to
modify the legal rights of the Parties under the Protocol, there is a legal question hanging
as to whether the penalty mechanisms currently adopted by resolution must be adopted
by amendment in order to entail binding legal consequences.266 Article 18 of the Protocol
specifies that any mechanisms entailing binding consequences must be adopted by means
of an amendment to the Protocol. UNFCCC Decision 24/CP.7 adopted the procedures
and mechanisms relating to compliance that were negotiated in the Marrakech Accords,
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and recommended that COP-MOP-1 adopt those procedures and mechanisms as well.
At COP-MOP-1, the procedures set out in Decision 24/CP.7 were approved and adopted
in full, although ‘without prejudice’ to consideration of the need to amend of the Kyoto
Protocol in accordance with Article 18. The Subsidiary Body on Implementation was
tasked with considering the amendment issue and reporting to COP-MOP-3 (2007).
The NCP provides that the Enforcement Branch may, when a Party is non-compliant,
determine whether to adjust or correct a Party’s emission commitments, where the Party
and the expert review team under Article 8 disagree.267 Where any Party breaches Articles
5.1, 5.2, 7.1 or 7.4,268 the Enforcement Branch may declare that the Party is non-compli-
ant, and request a compliance action plan.269 Where an Annex I Party does not meet the
eligibility requirements to use the flexibility mechanisms under Articles 6, 12 and 17, the
Enforcement Branch can suspend the Party from accessing the flexibility mechanisms.270
The Protocol adopts the dispute resolution procedure in the UNFCCC. UNFCC Article
14.8 provides that the dispute resolution procedures in Article 14 apply to any related legal
instrument that the COP adopts.
266 Gregory Rose, ‘A Compliance System for the Kyoto Protocol’ 7(2) UNSW Law Journal Forum (2001) 37-42 UNSW Law Journal, p.591.
268 Article 7.4 deals with reviewing guidelines for the preparations of national communications by Annex I Parties.

4. Marine
International Convention for the Regulation of Whaling 1946

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Overview
The International Convention for the Regulation of Whaling entered into force on 10
November 1948. The preamble states that the aim of the Convention is to ‘establish a
system of international regulation for the whale fisheries to ensure proper and effective
conservation and development of whale stocks…and thus make possible the orderly
development of the whaling industry.’
Article III establishes the International Whaling Commission. The Commission may adopt
regulations for protected and unprotected species, open and closed seasons, open and
closed waters, size limits, time, methods and intensity of whaling, types of equipment
to be used, methods of measurement and catch returns and other records.271 Article IX
requires Parties to take measures to implement the Convention and punish infractions.
The Convention lacks provisions for the regular assessment of whale populations, and
whale hunting for the purposes of scientific research is excluded from the operation of the
Convention.272 In 1982, the Convention Schedule was amended to require a ‘comprehen-
sive assessment’ of whale populations prior to lifting the ban on commercial whaling that
was imposed in that year.273
The Whaling Convention does not have in place a system for coherent review of perform-
ance of the Parties in implementing the Convention. It does, however, require that the
Parties submit certain information on some of their activities under the Convention.
Parties must provide information on all permits issued for the purposes of the exemption
for scientific research to the Commission as well as the results of the scientific research.274
271 Whaling Convention, Article V.1.

272 Whaling Convention, Article VIII.1.
273 Gregory Rose and Paleokrassis G. ‘Compliance with International Environmental Obligations - A Case Study of the International
Whaling Convention’ James Cameron, Werksman J. and Roderick, P., Improving Compliance with International Environmental Law
(Earthscan London 1996) 147 at p.160.
274 Whaling Convention, Article VIII.1 and VIII.3.
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Parties are also obliged to report to the Commission on the details of infractions of the
Convention under their jurisdiction, and to provide information on penalties imposed.275
In addition, the Convention imposes domestic monitoring and verification obligations on

the Parties.276 Initially, Parties were obliged to have two national observers on each ‘fac-
tory ship’ to which the Convention applies and ‘adequate inspection’ levels at land sta-
tions.277 However, this system was open to abuse by national authorities. The International
Observers Scheme was subsequently adopted in 1972, between the major whaling coun-
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tries, for the mutual exchange of observers in the Southern Hemisphere, North Pacific,
North Atlantic and Antarctic. The observers were obliged to submit compliance and non-
compliance reports to the Commission at the end of the season, and report serious infrac-
tions.278 This system was also open to abuse (e.g. many Soviet vessels simply operated
in secret), and it lapsed in 1986 when the last of the bilateral agreements establishing it
lapsed.279 The Scientific Committee has since embarked upon the task of developing man-
agement objectives and procedures (i.e. the Revised Management Procedure (RMP)) and a
new inspection and observation system, which would involve an international inspection
and observer system.280
There is currently no non-compliance procedure.
As there is no NCP, there are also no multilateral non-compliance response measures

under the Whaling Convention.
However, independently from a formal NCP, measures have been taken against States
taking actions that conflict with the aims of the Convention. Due to the strong political
sensitivities associated with commercial whaling, especially in ‘western’ countries, some
Parties have resorted unilaterally to political pressure or sanctions against States offending
against Commission resolutions, such as trade and fisheries access restrictions.281 Parties
have adopted measures against unregulated and unreported ‘pirate whaling’ in a series
of resolutions between 1976 and 1981 to boycott the importation of whaling goods from
275 Whaling Convention, Article IX.4 and Schedule, item 15.

276 Article IX.4 and Item 1 of Schedule 1.
277 Whaling Convention Schedule, item 1.
279 IWC 38th report (1988), p 1 (38th Meeting 1986).
281 Id., at p.171.

non-member countries.282 NGOs have also been relatively effective in their boycott cam-
paigns in response to whaling operations conducted by Japan and Norway.283
In addition to the General Fund credited or charged with all income and expenditure, the
Whaling Convention’s Financial Regulations create a Research Fund and a Voluntary Fund
for Small Cetaceans.284 The Research Fund collects voluntary contributions for research
and scientific investigation. The Voluntary Fund, created at its 46th Annual Meeting, allows
developing countries to participate in future small cetacean work.
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There is no formal dispute resolution procedure in the Whaling Convention.
282 Id., at p.172.

283 Id., p.171.
284 IWC Website, <http://www.iwcoffice.org/commission/procedure.htm> (17/9/05).
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London Convention on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter 1972
Overview
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The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter came into force on 30 August 1975. Under Article I, Parties must promote the
effective control of all sources of pollution of the marine environment. Article II obliges
the Parties to take individual and collective measures to prevent marine pollution caused
by dumping. Article IV.1 (a) provides that Parties must prohibit the dumping of the wastes
listed in Annex I.285 Generally, the dumping of the wastes listed in Annex II requires a spe-
cial permit while the dumping of all other wastes requires a general permit. Permits are
only issued after the Party considers the factors specified in Annex III. The provisions of
Article IV do not apply in certain circumstances, i.e. when it is necessary to secure human
life or vessels in cases of force majeure.286 In 1996, Parties adopted the Protocol to the
London Convention, which is more restrictive than the Convention. It supersedes for and
among the Contracting Parties the convention. It entered into force 24 March 2006.
Compliance Mechamisms
Parties are required to designate an appropriate authority to keep records of the nature
and quantity of waste that is dumped, including the location, time and method of dump-
ing.287 Under Article VI.4, Parties are obliged, either directly or through a Secretariat
established under a regional agreement, to report this information to the Organisation,
i.e. the London Convention Secretariat, as well as the criteria that they have adopted for
the purpose of issuing permits. The prohibition of dumping for substances not mentioned
in Annex I and dumping in cases of force majeure and emergencies should be referred to
the Organisation.288
Each national authority is obliged to monitor the condition of the seas either individually
or with other Parties.289 Under Article VII.3, the Parties agree to cooperate in the develop-
ment of procedures for the reporting of vessels and aircraft observed dumping in contra-
vention of the Convention.
285 London Convention, Article V.2.

286 London Convention, Article V.1. See also Article V.2, which states that a Party may issue a special permit as an exception to article IV
(1) (a) in emergencies.
287 London Convention, Article IV.1(c).
288 London Convention, Articles IV.3, V.1 and V.2.
289 London Convention, Article VI.1(d).

There is no non-compliance procedure under the London Convention290.
Technical Assistance Article IX provides that the Parties must promote, through collabora-
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tion within the Organisation and other international bodies, support for those Parties that
request assistance for the training of scientific and technical personnel, technology for
research, monitoring and the disposal and treatment of waste. At the consultative meeting
in 1996, the Parties voted to establish a Technical Cooperation Programme as well as a
Long-Term Strategy for Technical Cooperation activities.291
Penalties Under Article X, Parties undertake to develop procedures for the assessment of
liability and the settlement of disputes regarding dumping, in accordance with the inter-
national legal principles relating to state responsibility for damage to the environment.
There is a similar provision in the London Protocol under Article 15. In addition, under
Article 11, the London Protocol provides for the development of a NCP within two years
of its entry into force.
Under Article XI, Parties must consider procedures for the settlement of disputes at the
First Consultative Meeting. A dispute resolution procedure was adopted at the Third
Consultative Meeting in 1978 as an amendment to the Convention but it never came into
force. The amendment provides that if negotiations fail, the dispute must be submitted to
the International Court of Justice or to arbitration in accordance with the arbitration pro-
cedures in Annex III, if one of the Parties so requests.292 This amendment instead formed
the basis of the Arbitral Procedure in Annex 3 to the London Protocol.293
290 The Protocal recognizes the importance of implememtation and Article 11 details compliance procedures under which, no later
than two years after entry into force of the Protocol, the Meeting of Contracting Parties “shall establish those procedures and
mechanisms necessary to assess and promote compliance”.
291 List of London Convention Resolutions, <http://www.londonconvention.org/> (25/10/05).
292 Gr. J. Timagenis International Control of Marine Pollution (Dobbs Ferry NY 1980) p.282.
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United Nations Convention on the Law of The Sea 1982
Overview
The United Nations Convention on the Law of the Sea (UNCLOS) entered into force on 16
November 1994. The product of nine years of negotiations, UNCLOS codified customary
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law and treaty law stemming from the Geneva Conventions on the Law of the Sea294 into
320 articles and nine annexes. It created new legal regimes in respect of the 200-mile
exclusive economic zone and the 12-mile territorial sea, exploitation of the deep seabed,
transit through international straits, archipelagic and landlocked States, marine pollution,
marine fisheries management and the continental shelf.295 Part XII of UNCLOS focuses
solely on control of marine pollution and, together with Part XV, which concerns dispute
settlement, is considered here.
Part XII contains provisions on preventing, reducing and controlling marine pollution.
Article 204 obliges Parties to observe measure, evaluate and analyse, by recognised scien-
tific methods, the risks or effects of pollution of the marine environment. In essence, Article
204 imposes impact assessment and monitoring obligations in respect of the risks or effects
of pollution. Article 205 requires Parties to publish reports on the results obtained pursuant
to Article 204 and provide them to ‘competent international organisations.’ It has been left
to subsequent instruments to flesh out the details of the marine pollution regime.
There are no performance review obligations incumbent upon the Parties. The UN
Secretary-General provides an annual report to the General Assembly concerning the
implementation of UNCLOS.
UNCLOS and its MOP have not established a multilateral non-compliance procedure.
Although UNCLOS does not set out any non-compliance response mechanisms, it does
contain implementation support provisions that promote assistance to Parties in the dis-
charge of their primary marine environmental obligations. Those provisions are noted
294 Geneva Conventions on the Territorial Sea and the Contiguous Zone 1958, 516 UNTS 205 on the High Seas 1958, 450 UNTS 82, on
the Continental Shelf 1958, 499 UNTS 311 and on Fishing and Conservation of the Living Resources of the High Seas 1958, 599 UNTS
285.
295 Harris, D.J, Cases and Materials on International Law, 5th Edition, Sweet & Maxwell, London, 1998, p.370.

here because they support implementation, not because they set out non-compliance
responses. The provisions relate to technical assistance and legal liability for breaches
causing damage to a Party. There are no financial assistance provisions and no multilateral
processes.
Technical Assistance UNCLOS contains technical assistance provisions in relation to

marine conservation and pollution, marine research and exploitation of the deep seabed.
In relation to marine conservation and pollution, Article 61.5 states that available scientific
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information relevant to the conservation of fish stocks and catch and fishing statistics must
be exchanged on a regular basis. There are provisions for technical assistance to develop-
ing Parties.296 Further, Parties have a duty to cooperate with other States in the conservation
and management of living resources in the high seas.297 States whose nationals exploit liv-
ing resources in the same area must enter into negotiations with a view to conserving the
resources so exploited.298 In relation to marine research, Part XIV provides for the devel-
opment and transfer of marine technology and calls on Parties to cooperate and facilitate
exchanges through existing bilateral, regional or multilateral programmes.299
Penalties. Under UNCLOS, Parties are to be mutually liable under international laws for
their failures to fulfil their obligations to protect and conserve the marine environment.300
They must ensure that recourse to compensation is available in accordance with their
national laws.301 In addition, Parties are liable for damages caused by failures to ensure
that their activities undertaken in the seabed area comply with Part XI.302 Finally, they are
to be liable in respect of failing to adhere to the Convention’s procedures on the conduct
of marine scientific research.303 In none of these cases, however, does UNCLOS go beyond
statements of general principles to specify the procedures for establishing and imposing
liability.
The UNCLOS dispute resolution system is extraordinary for its comprehensive, compulsory
and binding nature. The dispute resolution procedure comprises two parts. Section 1 of
Part XV contains general provisions relating to the peaceful settlement of disputes. Section
2 of Part XV contains provisions concerning compulsory dispute resolution procedures.
Under Section 1, Article 279 states that the Parties must settle any disputes between them
regarding the interpretation or application of the Convention in accordance with Article
2(3) of the UN Charter and by any of the means indicated in Article 33(1) of the UN
Charter.304 Article 280 provides that Parties have the right to settle any dispute between
them through peaceful means of their choice, while Article 283 reiterates this point, stat-
296 UNCLOS, Article 202.

299 UNCLOS, Articles 266 and 270.
300 UNCLOS, Article 235.1.
304 United Nations Charter, Article 33 states that the ‘Parties to any dispute, the continuance of which is likely to endanger the mainte-
nance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.’
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ing that, when a dispute arises, the Parties must ‘proceed expeditiously to an exchange
of views regarding its settlement by negotiation or other peaceful means.’ Those ‘other
peaceful means’ may have been agreed to in advance. For example, the European Union
would submit any fisheries dispute arising between members to the European Court of
Justice.305 If they have not been agreed to, Parties can opt for any judicial or non-judicial
procedures.306
If the Parties fail to resolve the dispute once these agreed procedures have been under-
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taken, one of the Parties can invite the other to submit to the conciliation procedure out-
lined in Article 284 and Annex V. If the invitation is accepted, each Party can nominate
four conciliators from who each must choose two. The four conciliators then choose a fifth
person who acts as the chairman. The conciliators have one year to make a report and
recommendations.
If conciliation fails or the invitation is rejected, Parties then have the right to invoke the
compulsory dispute settlement procedures in Section 2 of Part XV. The compulsory pro-
cedures entail binding decisions. Articles 286 and 287 oblige the Parties to have recourse
to the compulsory procedures if the peaceful means that they chose to resolve the matter
failed. However, this obligation has exceptions:
n Article 297(1) states that Parties cannot invoke the compulsory procedures
for a dispute concerning the exercise of another Party’s rights or jurisdiction
within its exclusive economic zone (EEZ), unless it is alleged that: the State
has contravened the Convention with respect to the freedoms and rights of
navigation, overflight or the laying of submarine cables and pipelines, or in
regard to other internationally lawful uses of the sea outlined in Article 58;
in exercising any such freedoms the State has contravened the Convention
on national laws adopted in conformity with the Convention; or the State has
exercised its jurisdiction inconsistently with internationally adopted rules on
marine pollution.
n Article 297(2) states that Parties are not obliged to submit disputes concerning
the refusal to give permission to conduct scientific research in their EEZs
or continental shelves. If the dispute is not submitted to the compulsory
procedures, it must be submitted to the conciliation procedure under Annex V.
n The compulsory procedures are not applicable to disputes arising from
failures to determine total allowable catches and coastal harvesting capacities,
allocating surpluses to other States and the terms of conservation measures.
However, where it is alleged that a State has failed to ensure that its EEZ fish
stocks are not seriously endangered, or it has arbitrarily refused to determine
total allowable catches or harvesting capacity or to allocate a surplus to other
States, the ‘compulsory conciliation procedure’ may be invoked.307
305 E.D. Brown The International Law of the Sea – Vol. 1 Introductory Manual (Dartmouth Aldershot 1994) p.454.
306 E.D. Brown The International Law of the Sea – Vol. 1 Introductory Manual (Dartmouth Aldershot 1994) p.454.
307 UNCLOS, Article 297(3).

Parties can also opt out of the compulsory dispute resolution procedures for disputes
concerning sea boundary delimitation and claims to historic waters, military and law
enforcement activities and the exercise of Security Council functions.308 Disputes falling
within the first category may be referred to conciliation at the request of one of the Parties
if a resolution is not achieved within a reasonable period of time through negotiation.309
Article 298 allows Parties to impose these limitations when signing, ratifying or acceding
to the Convention or anytime thereafter.
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Parties are given a choice of forum. They can choose to have the matter heard before the
International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral
tribunal established in accordance with Annex VII or a special arbitral tribunal established
in accordance with Annex VIII.310 These bodies apply the rules of the Convention and the
rules of international law, although Article 293 allows the Parties to request a decision that
is made on the general principles of equity and fairness. Parties must declare which of the
four bodies they choose as a dispute resolution mechanism at any time.311 However, where
a Party has not made an election, it is deemed to accept arbitration under Annex VII.312
The Tribunal was established under Annex VI and has 21 members who are elected by
the Parties.313 However, only 11 members are required at any plenary session, although
the Tribunal has the power to establish smaller ‘chambers’ to deal with specific issues.314
Thus, the Tribunal has a chamber of summary procedure and chambers for fisheries, envi-
ronmental disputes and sea-bed disputes.315 Disputes concerning the exploration of the
international seabed must be submitted to the Seabed Disputes Chamber of the Tribunal
and not to any other process.316
An arbitral tribunal under Annex VII may be established for disputes between States and
disputes involving international organisations. Each UNCLOS Party nominates four people
to sit on the panel from the Parties to the dispute must each choose one person.317 Three
members are then chosen jointly.318 The award is final and without appeal unless the
Parties have agreed to an appellate procedure.319
Disputes concerning fisheries, protecting and preserving the marine environment, marine
scientific research or navigation must be submitted for special arbitration in accordance
with Annex VIII.320 There are four lists dealing with one of the above categories and all
Parties to the Convention may nominate two experts in a relevant field to each of these

309 UNCLOS, Article 298.1(a).
313 UNCLOS, Annex VI, Article 2.
314 UNCLOS, Annex VI, Article 13.1.
315 UNCLOS, Annex VI, Article 15.
317 UNCLOS, Annex VII, Article 2.
320 UNCLOS, Annex VIII, Article 1.
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lists.321 Parties may then choose two arbitrators for each case.322 The special arbitral tribu-
nal can be used as a fact-finding body.323 The findings are binding and if requested, the
tribunal can formulate non-binding recommendations.324
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323 UNCLOS, Annex VIII, Article 5.2.
324 UNCLOS, Annex VIII, Article 5.1 and 5.3.

Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982
Relating to the Conservation and Management of Straddling Fish
Stocks and Highly Migratory Fish Stocks 1995
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Overview
The Agreement for the Implementation of the Provisions of the United Nations Convention
on the Law of the Sea of 10 December 1982 relating to the Conservation and Management
of Straddling Fish Stocks and Highly Migratory Fish Stocks (the Fish Stocks Agreement)
entered into force on 11 December 2001. It aims to ensure the long-term conservation and
sustainable use of straddling fish stocks, i.e. stocks that straddle high seas and zones under
national jurisdiction, and of highly migratory species, i.e. as listed in UNCLOS Annex II. It
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focuses on areas beyond national jurisdiction although Articles 6 and 7 apply to the con-
servation and management of such stocks within areas under national jurisdiction.325
Article 5 outlines general principles. Parties must: adopt measures to ensure long-term
sustainability of straddling fish stocks and highly migratory fish stocks and to promote the
objective of their optimum utilisation; ensure that such measures are based on the best sci-
entific evidence available and are designed to maintain or restore stocks at levels capable
of producing the maximum sustainable yield; apply the precautionary approach in Article
6; assess the impact of fishing and environmental factors on target stocks; adopt conser-
vation and management measures to maintain or restore such species above sustainable
levels; minimise pollution, waste, catch by lost or abandoned gear or catch of non-target
species; take measures to protect biodiversity in the marine environment and to eliminate
over-fishing; and promote and conduct scientific research and develop appropriate tech-
nologies to support conservation and management.
Article 9 provides a framework for cooperating in or establishing sub-regional or regional

fisheries management organisations and arrangements while Article 10 sets out their func-
tions. Some of these functions include agreeing on standards for collection, reporting,
verification and exchange of data, compiling and disseminating accurate and complete
statistical information in accordance with Annex I and establishing cooperative mecha-
nisms for monitoring, control, surveillance and enforcement.326
Under Article 18, a State whose vessels fish in the high seas must take measures to ensure
that vessels flying its flag comply with sub-regional and regional conservation and man-
agement measures and that any such vessels do not engage in activity which undermine
the effectiveness of those measures. Such measures include national laws and policies,
including the establishment of licensing systems as well as monitoring and inspection
schemes.
325 Fish Stocks Agreement, Articles 2 and 3.1.

326 Fish Stocks Agreement, Article 10(e), (f) and (h).
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The Fish Stocks Agreement does not impose requirements upon its Parties to prepare or
submit performance review information. Instead, its information requirements concern (1)
conduct and sharing of relevant scientific research and (2) review at the internal national
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level of domestic fishing unit performance. These two types of information contribute to
an informed review of national performance but, of themselves, do not amount to a per-
formance review.
In relation to information concerning scientific baselines for the design of sustainable fish-
eries management measures, Parties must collect and share complete and accurate data
on fishing activities on, inter alia, vessel position, catch of target and non-target species,
and fishing effort, as set out in Annex I. They must also submit information from national
and international research programs.327 They must develop data collection and research
programs to assess the impact of fishing on non-target and associated or dependent spe-
cies and their environment328 and must enhance the monitoring of uncertain stocks in
order to review their status and the efficacy of conservation and management measures
and establish mechanisms for the verification of catch data. States are also to ensure that
fishing vessels flying their flag collect and exchange scientific, technical and statistical data
with respect to fisheries for straddling fish stocks and highly migratory fish stocks; ensure
that data are collected with sufficient detail to facilitate effective stock assessment; and
provide such information to sub-regional or regional fisheries management organisations
or arrangements and to verify the accuracy of such data.329 Parties must take appropriate
measures to verify the data that is supplied. In addition, Parties must agree, either directly
or through sub-regional or regional fisheries management organisations or arrangements
on data specifications and format and develop and share analytical techniques and stock
assessment methods.
In relation to performance review of the operations of domestic fishing units, the Parties
and regional fishing organisations are required to collect operational information to meet
their obligations to conduct effective monitoring, control and surveillance within their
jurisdictions.330 Under Article 18.3, Parties are obliged to monitor vessels flying their flag,
their fishing operations and related activities by, inter alia, implementing national inspec-
tion schemes, observer programs and vessel monitoring systems. They must also verify the
catch of target and non-target species through observer programs, inspection schemes,
unloading reports, supervision of trans-shipment and monitoring of landed catches and
market statistics. Subregional and regional fisheries management organisations and
arrangements must agree on verification standards for fish stocks.331 Further, these subre-
gional and regional fisheries management organisations and arrangements are required
327 Fish Stocks Agreement, Article 5(j).

328 Fish Stocks Agreement, Article 6.2(d).
329 Fish Stocks Agreement, Article 14.
330 Article 5(l).
331 Article 10(e).

to develop appropriate monitoring, control, surveillance and enforcement procedures.332
Finally, under Articles 20.1 and 21, Parties may establish boarding and inspection pro-
cedures through regional bodies for boarding and inspection for the purpose of ensuring
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The Fish Stocks Agreement does not institute a NCP. Part VI of the Fish Stocks Agreement
requires the design of compliance and enforcement systems. These systems do not relate
to the compliance of Parties with the Agreement but, rather, to the compliance of a State’s
fishing vessels with sub-regional and regional conservation management measures.333
Despite not having a NCP, the Fish Stocks Agreement does set in place certain technical
and financial assistance obligations to help developing country Parties meet their com-
mitments. They are not responsive to a finding of non-compliance and, therefore, are not
non-compliance response measures. However, they have been included here to give a
full picture of measures available to assist a Party with its compliance with the Fish Stocks
Agreements.
Technical Assistance Parties acknowledge the special assistance which developing Parties
require in conserving and managing straddling fish stocks.334 Assistance is to be in the
form of financial assistance, human resources development, technical assistance, transfer
of technology and advisory and consultative services.335
Financial Assistance Article 26 requires Parties to cooperate to establish special funds to

assist developing The United Nations General Assembly urged States Parties to the Fish
Stocks Agreement to develop terms of reference for a voluntary trust fund within the
United Nations system, which would assist developing Parties in meeting their obliga-
tions.336 At their second informal consultations, the Parties to the Agreement agreed on the
terms of reference for an Assistance Fund, and recommended that the General Assembly
establish it.337
Like UNCLOS, there is an obligation on Parties to settle disputes peacefully.338 Disputes

of a technical nature can be referred to an ad hoc expert panel established by them.339
However, the compulsory dispute resolution procedure established in Part XV of UNCLOS
applies to any dispute between Parties over the interpretation of the Fish Stocks Agreement
332 Article 10(h). See also Article 16.1.

333 Fish Stocks Agreement, Articles 19-23.
335 Fish Stocks Agreement, Article 25.2.
336 Resolution 57/143 (17 December 2002). See also UN Website,<http://www.un.org/depts/los/convention_agreements/fishstocktrust-
fund/fishstocktrustfund.htm> (8/9/05).
337 See also UN Website, <http://www.un.org/depts/los/convention_agreements/fishstocktrustfund/fishstocktrustfund.htm> (8/9/05).
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or of any sub-regional, regional or global fisheries agreement relating to straddling fish
stocks or highly migratory fish stocks to which they are Parties.340 Parties must adopt a
procedure pursuant to Article 287 of UNCLOS.341
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340 Fish Stocks Agreement, Articles 30.1 and 30.2.

341 Fish Stocks Agreement, Article 30.3.

MMultilate
E N T OF r
MEAs
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Chapter III.
Comparative Analysis
• Comparative A nalysis 101

102 Co m p l i a nce M e ch a n i s m s U n d e r S e l ec t e d Mu lt i l ateral E nvironmental Agreements
Comparative Analysis
Overview
This chapter compares the components of compliance mechanisms by category across

MEAs. Where available, the academic, governmental and inter-governmental literature
concerning the operational qualities of particular MEA compliance mechanisms is sur-
veyed. As discussed in Chapter II, there are four categories of components in compliance
mechanisms.
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(a) Performance review information obligations in MEAs require Parties to report
on their implementation performance and to provide a range of related
statistical data to the Secretariat or COP/MOP. Other compliance-related
information obligations involve third-party verification or monitoring of a Party’s
performance.
(b) Multilateral non-compliance procedures are institutional mechanisms set up

to examine performance review information and make determinations as
to a Party’s compliance status. These procedures may be formal, entailing a
special committee to investigate allegations of non-compliance and make
recommendations. Others, however, are informal and ad hoc.
(c) Once a NCP has made a determination that a Party is substantially non-
compliant, it may suggest responses. These outputs may take the form of
recommendations of a Committee to the COP/MOP or the adoption of relevant
resolutions by the COP/MOP. The non-compliance response measures adopted
under a NCP vary. They include a range of incentives and disincentives, or
‘carrots and sticks’.
(d) Finally, there are dispute resolution procedures. These are adversarial and arise
between Parties without engaging the COP or Secretariat.
Table 3.1 synthesises some of the information contained in Chapter II to provide a broad
overview of the framework for compliance in each MEA. Greater depth concerning the
nature of the occurrence of each component of the compliance mechanism is provided in
the following sections of this chapter.

Table 3.1. Overview of MEA Compliance Frameworks
Convention National Multilateral Non- Dispute

Performance Non- Compliance Resolution
Information Compliance Response Procedures
Procedures Measures
Ramsar √ √ √
World √ √ √ √
Heritage
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CITES √ √ √ √
CMS √ √ √
CBD √ √
UNCCD √ Pending √
ITPGRFA Pending √
Basel √ √ √ √
PIC Pending √
Biosafety √ √ √ √
POPs √ Pending √
Vienna Ozone √ √
Montreal √ √ √ √
Protocol
UNFCCC √ √ √ √
Kyoto Protocol √ √ √ √
Whaling √ √
London √
UNCLOS √
Fish Stocks √

National Performance Information
Information on a Party’s performance is essential to determine whether it is complying

with its obligations. As noted in Chapter II, the provision of related information is often
also required at other phases in the implementation of an MEA, i.e. as part of the primary
operations requiring information exchange, as part of the provision of technical assistance,
or for overall review and redesign of the regime. A particular group of data can be used
across several phases of the implementation of the MEA. For example, information on
national compliance will be useful at the MEA regime review stage. Reliable information
is central to the operation of an MEA and this is especially true regarding compliance, as
the core of any compliance mechanism is information on performance.
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Self-Reporting
Most MEAs oblige Parties to provide the secretariat with annual reports that the Parties
themselves prepare on their national implementation. These may involve details on the
development of national programs, policies and measures (see: CITES, CMS, Ramsar
Convention, CBD, Biosafety Protocol, Basel Convention, Vienna Convention, Montreal
Protocol, UNFCCC, Kyoto Protocol, Fish Stocks Agreement and Whaling Convention). In
particular, UNCCD and the POPs Convention specifically require the Parties to submit
information specifically on national implementation plans.
Some Conventions require Parties to submit further scientific, technical and transactional
data to the Secretariat. For example, CITES requires Parties to submit annual import/export
statistics, while the Fish Stocks Agreement and the Whaling Convention require Parties to
submit annual catch/permit reports. The Basel Convention obliges Parties to submit detailed
information on their exports, imports, and disposal of hazardous wastes and other wastes
on an annual basis. CMS obliges Parties to provide data on the numbers of migratory spe-
cies passing through their respective jurisdictions. The Montreal Protocol, UNFCCC and
Kyoto Protocol require Parties to submit initial baseline and annual production data for
listed pollutants. While this data can be used to interpret performance information, in itself
it is not performance information.
Only three MEAs do not impose obligations on their Parties to prepare reports on their
respective individual performances. These are the ITPGRFA, the PIC Convention and
UNCLOS. The ITPGRFA obliges Parties to provide only transactional information to each
other on the resources being supplied under its Multilateral System. Similarly, the PIC
Convention obliges Parties to provide the Secretariat with information on specific import
decisions rather than annual reports. That information is then circulated to the other
Parties. In both cases, the information required is operational data to facilitate transac-
tions regulated under the treaty, rather than a system of reflective reporting of national
performance. UNCLOS is a framework Convention, leaving reporting requirements to be
developed by other, usually regional, organizations.
Generally, specific instructions on the content and format of national performance reports
are available from the Secretariat or from the MEA Website. Some Secretariat Websites (e.g.
CBD, CITES, Ramsar and Basel) provide report templates that require Parties to tick boxes

in response to specific questions or require the Parties to otherwise attach information. The
majority of MEA websites have posted guidelines that specify the type of information to
be included in reports.342 For example, the World Heritage Convention has guidelines that
specify the purpose, format and general requirements of periodic reports.343
Third-party Verification
Verification is the process of testing the accuracy of performance information provided,
usually through on-site inspections. Some MEAs have verification requirements. For exam-
ple, the Ramsar and UNFCCC/Kyoto Secretariats conduct on-site verifications, mainly to
obtain performance information.344 The Whaling Convention is currently in the process of
developing a new verification procedure. The process is undertaken by a third Party, such
as the Secretariat or an NGO, or by them in combination with other Parties to the treaty.
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Third-party Monitoring
In contrast to self-reporting, third-party monitoring of performance engages a non-Party

in reporting on national implementation of MEA obligations. In contrast to verification,
performance monitoring may address a Party’s establishment of systems to implement
the MEA but does not involve review of accuracy of particular information for its own
sake. (Third-party monitoring of national performance must also be distinguished from
third-party monitoring of environmental conditions, which is sometimes undertaken by
independent scientific and technical bodies that work in cooperation with the MEA.) Third-
party monitoring of performance is uncommon, perhaps because it is resource intensive.
Under CITES, third Parties – TRAFFIC (an NGO affiliated to WWF) and the WCO – have
roles in monitoring compliance. The Ramsar Convention introduces third-party monitoring
of degraded wetlands as a non-compliance response345, and the Whaling Convention is
currently developing a new monitoring procedure.
Non-Compliance Response Information
Failures to comply with obligations concerning submission of national performance

information undermine the regime of an MEA because the information deficit can con-
ceal national non-performance of primary operational obligations. Consequently, failure
to comply with performance review obligations is a substantive default that can trigger
an MEA’s NCP, as is the case under CITES and the Montreal and Kyoto Protocols. Upon
342 CMS, <http://www.cms.int/bodies/COP/cop7/list_of_docs/pdf/en/CP7CF7_06_2_national_report.pdf>; World Heritage, <http://

whc.unesco.org/reporting/prexpl.htm>; Ramsar, <http://www.ramsar.org/cop9_nrform_ready_e.htm>; CBD, <http://www.biodiv.
org/world/intro.asp>; Biosafety, <http://www.biodiv.org/biosafety/cop-mop/result.aspx?id=8291>; POPs, <http://www.pops.
int/documents/guidance/>; PIC, <http://www.pic.int/en/viewpage.asp?Id_Cat=104&mTitre=FORMS+%26+GUIDANCE>; Vienna,
<http://hq.unep.org/ozone/Information_for_the_Parties/3A_data_reporting.asp>; Montreal Protocol, <http://hq.unep.org/ozone/
pdfs/Handbook-on-Data-Report-from-UNEP-TIE.pdf>; UNFCCC, <http://unfccc.int/national_reports/items/1408.php>; and Kyoto,
<http://unfccc.int/national_reports/accounting_reporting_and_review_under_the_kyoto_protocol/items/1029.php> (25/10/05).
343 World Heritage, <http://whc.unesco.org/reporting/prexpl.htm>; POPs, <http://www.pops.int/documents/guidance/> (25/10/05).
344 The Basel Convention provision entitled ‘Verification’ (Art. 19) addresses a trigger mechanism for the NCP. The Fish Stocks
Agreement includes an obligation on Parties to develop their own national verification procedures with respect to vessels flying
their own flags (Art.18.3). This concerns national implementation rather than performance information.
345 Annex 1 to Recommendation 4.7.

processing through the NCPs, a response that imposes further performance information
obligations on the defaulting Party can result.
The information required under a NCP can be additional to that ordinarily required, or
simply require the original performance information as part of a package of additional
measures. For example, the NCPs of the Biosafety and Kyoto Protocols require that the
defaulting Party submit a compliance action plan outlining how the non-compliant Party
will achieve compliance within a set timeframe.346 The Basel Convention mandates its
Compliance Committee to elaborate, in response to a submission, a voluntary compliance
action plan and to review its implementation, which may impose more stringent perfor-
mance reporting obligations for the Party in question (if it chooses to accept the plan).
The CITES Secretariat conducts ad hoc verification missions to assess a Party’s compliance
with its obligations, both as a primary implementation support and as a non-compliance
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response.347
346 Kyoto Website, <http://unfccc.int/kyoto_mechanisms/compliance/items/3024.php> and Biosafety Website, <http://www.biodiv.

org/biosafety/issues/compliance2.aspx> (25/10/05).
p.75.

Table 3.2. Performance Review Information
Conven- Review National Non-Compliance

tion Format Performance Response Information
Review
Template Guidelines Report- 3rd Party 3rd Party Reporting 3rd Party 3rd Party
ing Verifica- Monitor- Verification Monitor-
tion ing ing
Ramsar √ √ √ √
World √ √ √ √
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Heritage
CITES √ √ √ √ √
CMS √ √
CBD √ √
UNCCD Pending √
ITPGRFA √
Basel √ √ √ √ √
PIC
Biosafety √ √ √
POPs √ √
Vienna √ √
Montreal √ √
Protocol
UNFCCC √ √ √
Kyoto √ √ √ √ √
Protocol
Whaling √ √ √
London √
UNCLOS
Fish Stocks
Table 3.2 focuses on performance information provisions under the headings of Review
Format, Performance Review and Non-Compliance Response Information. It should be
noted that there is a divergence among MEAs that regulate international transactions. The
CITES, Basel Convention and Montreal Protocol each require the Parties to include infor-
mation on regulated transactions in their national performance reports. In contrast, the
PIC Convention and ITPGRFA do not require Parties to include in the details of regulated

transactions. The latter omissions generate significant gaps in the available performance
information for those treaties.
Potential interlinkages in gathering performance review information arise between MEAs

engaged in regulating closely related activities. For example, where MEAs regulate over-
lapping sites, species, substances or emissions, there is heightened potential for coordina-
tion. This performance review information will be most useful across MEAs when review
requires the provision of statistical, transactional or other quantifiable data, rather than
qualitative descriptive evaluations. The latter are typically more related to descriptions
of policy measures that are customised to particular MEAs and may also be less factually
objective.
In relation to self-reporting, the interlinkages may be created in the form of harmonization
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of reporting formats and joint MEA reporting by a Party. Extensive work has been under-
taken by the World Conservation Monitoring Centre and the United Nations University on
harmonization of reporting formats. This work is canvassed in Chapter 4. (It should also
be noted that where self-reporting addresses a transnational ecosystem, joint reports might
be appropriate.)
In relation to monitoring and verification, potential interlinkages exist in carrying out third-
party monitoring operations and verification missions. Thus, while on mission, a verifica-
tion team might be multi-tasked to assess aspects of compliance common to several MEAs.
For example, world natural heritage sites, wetlands, migratory species and biodiversity
reserves might be inspected on a single mission. Similarly, customs controls might be
inspected in relation to capacity to comply with MEAs concerning international trade in
endangered species, hazardous and other wastes, POPs, PIC chemicals and ODS.
UNEP might usefully establish a roster of technical experts to conduct monitoring and
verifications for the MEAs that it administers. Analogy can be made with the peer reviews
that are conducted by the OECD Secretariat on progress in all member countries and
three non-member countries.348 These reviews are conducted cyclically to assess whether
the reviewed country is meeting its domestic environmental regulations and international
environmental obligations. Multi-tasking a monitoring or verification mission across MEA
Secretariats would be little more difficult than bringing together a team of experts for dif-
ferent MEAs administered by one organisation. However, the approval of the governing
body of each MEA concerned would be required, to provide that one organization with a
mandate to undertake such monitoring or verification.
348 OECD Website, <http://www.oecd.org/topic/0,2686,en_2649_34307_1_1_1_1_37465,00.html> (25/10/05).

Multilateral Non-Compliance Response Procedures
Non-Compliance Procedures require administration by a body established under the

MEA. That body is usually the COP/MOP but it may be assisted by a specialised compli-
ance committee that the COP/MOP has established by resolution for that purpose. The
compliance committees consist of one to two dozen members elected by the COP/MOP
according to geographically representative formulae that are varied or adjusted to meet the
MEA concerns and interests to be represented. Regional groupings sometimes nominate
for election individuals with legal expertise, or with expertise of the subject-matter of the
MEA. Although regionally representative, the members sit in their individual capacities.
Alternatively, where members do not serve in their individual capacity, they are stated to
serve “objectively” (e.g. Basel Convention Compliance Committee).
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MEAs that do not have specialised compliance committees may incorporate a NCP
administered directly by the COP/MOP. Specialised MEA compliance committees, usu-
ally named the Implementation Committee or Compliance Committee, operate during the
meeting of a COP/MOP in most cases. They consider cases of non-compliance referred to
them, reach a determination on the compliance status of the Party and make a recommen-
dation to the COP/MOP for appropriate responsive action. Thus, the determination and
recommendation of the non-compliance committee must be approved by the COP/MOP.
The COP/MOPs for CITES, the Biosafety Protocol, the Basel Convention, the Montreal
Protocol, the UNFCCC and the Kyoto Protocol all have such specialised committees. For
the Basel Convention, referral to the COP is a supplementary measure, when facilitation
measures have not been successful or are insufficient to address the issue in question. Its
Compliance Committee may also provide, on its own behalf, advice, non-binding recom-
mendations and information to the Party whose compliance is in question and after co-
ordinating with that Party.
A suggestion that a Party is non-compliant can come to the attention of a body administer-
ing a NCP in a variety of ways. The Party experiencing compliance difficulties itself can
initiate the procedure. Otherwise, the Party’s non-compliance might come to the attention
of any of the other Parties or the Secretariat, which refer the matter to the NCP. A third-
party body performing a monitoring role can report cases of possible non-compliance to
the Secretariat, which may then invoke the NCP. For example, under CITES, the Secretariat
receives and may pass on information on non-compliance from TRAFFIC and other NGOs
and, under the Kyoto Protocol, expert review teams may trigger the NCP.
Table 3.3 shows the MEAs that have adopted NCPs. It elaborates on how they are triggered
and the body that administers them.
Thirteen of the MEAs have developed, or are in the process of developing, NCPs to deal
with instances of apparent non-compliance. However, potential for interlinkages between
NCPs is slight. Each is specific to the political context of its MEA, i.e. to the sensitive bal-
ance struck during its negotiation processes and to the composition of its COP/MOP or
elected sub-committee membership. Thus, it would be premature (if not inappropriate) to
seek to harmonize NCPs or combine committees across MEAs. However, two other types
of NCP interlinkages might be possible.

First, closer coordination between MEA secretariats could enhance their capacity to trig-
ger NCPs. For example, evidence of corruption of customs authorities resulting in a Party’s
non-compliance concerning its trade-related obligations might implicate that Party in
similar non-compliance under more than one MEA. Protocols for coordination of perfor-
mance information between secretariats could enable them to be more effective in trig-
gering their respective NCPs. Such coordination would be likely to be useful across MEAs
within a cluster but could also be useful across MEAs that regulate related activities, such
as international trade.
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Table 3.3. Multilateral Non-Compliance Response Procedures
Convention Procedure Trigger Body Decision-

Making Body
Established Pending Any Secretariat Other COP Committee
Member
Ramsar √ √ √
World Heritage √ √ √ √ √
CITES √ √ √ √ √ √
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CMS √ √ √ √
CBD
UNCCD √
ITPGRFA √
Basel √ √ √ √ √
PIC √
Biosafety √ √ √ √
POPs √
Vienna
Montreal Pro- √ √ √ √ √
tocol
UNFCCC √ √ √ √ √
Kyoto Protocol √ √ √ √ √ √
Whaling
London
UNCLOS
Fish Stocks
Second, NCP decision-making bodies could coordinate their responses so as to maxi-

mise their effect for the non-compliant Party. Thus, the coordination of implementation
assistance across MEAs to address non-compliance caused by a systemic lack of environ-
mental capacity would be more effective than piecemeal or duplicative implementation
assistance. Similarly, the coordination of penalties would have greater impact. Again, such

coordination would be likely to be useful across MEAs within a cluster but could also
be useful across MEAs that regulate related activities. Coordination of non-compliance
responses is discussed in more detail immediately below.
Non-Compliance Response Measures
Once a determination of non-compliance is made under a NCP, it is in most cases the

COP/MOP that formally decides upon or adopts the Committee’s recommended response
measures. These typically take the form of targeted implementation assistance. Less com-
mon are response measures in the form of penalties.
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Implementation Assistance
The forms of implementation assistance are provision of information, technical support

and financial assistance. For the purposes of this study, technical support is broadly
defined to include capacity building and training, cooperation in scientific endeavours and
research, or transfer of technology.
Implementation assistance is usually available under an MEA at earlier stages in the

implementation cycle, as basic implementation assistance, rather than as a response to
non-compliance. All of the MEAs surveyed in this paper provide some measure of basic
implementation assistance to Parties in need at those earlier stages. Upon a determination
of non-compliance, targeted implementation assistance to a non-compliant Party might
be prioritized and made subject to conditions. Thus, arrangements under an MEA for the
provision of basic implementation assistance can be specifically directed, as the output of
a NCP, to help fix a Party’s non-compliance problems.
For the purposes of this study of compliance mechanisms, it is only implementation

assistance that is an output of the NCP that it is addressed. However, as the NCP’s output
typically draws upon general arrangements for assistance that operate under an MEA at
earlier stages of the implementation cycle, those general arrangements must be noted. Of
particular relevance is implementation assistance to help non-compliant Parties meet their
performance review obligations. For that reason, Table 3.4 identifies assistance to meet
performance review requirements separately from other technical and financial assistance.
It also compares the provision of implementation assistance at the earlier stages of imple-
mentation with assistance that is an output of the NCP.
As can be seen in Table 3.4, every MEA contains implementation support assistance
obligations. All but one MEA has a funding mechanism to provide financial assistance
to Parties for the implementation of approved projects and programs. Thus, all MEAs that
include a NCP can draw upon their existing technical and financial support arrangements
in crafting non-compliance response measures.
It follows that, just as Parties to MEAs might coordinate their technical and financial sup-
port arrangements so as to maximise their positive impacts, those same arrangements
could be coordinated in the context of non-compliance response measures. Where a

systemic lack of environmental capacity is considered to be the cause of non-compliance,
coordination of responsive assistance across related MEAs would be more effective than
piecemeal or duplicative efforts. In fact, non-compliance measures could be easier to
coordinate across MEAs than general implementation assistance measures. This is because
they are nominated as priorities by NCP determinations and they are fewer in number than
general requests for assistance (because they carry the stigma of non-compliance).
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Table 3.4. Implementation Assistance
KEY: CHM = clearing-house mechanism; O = operational
Non-Compliance Primary Implementation Assistance

Response Assistance
Technical Financial Technical Financial
Ramsar √ Implementation guidelines Ramsar Small

developed by Ramsar Grants Fund
Bureau; information
exchange and CHM
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World √ Emergency Technical and scientific World Heritage
Heritage Assistance cooperation and capacity Fund, Reserve Fund
building and Funds in Trust
CITES √ Capacity building Trust fund
CMS Capacity building (Global Trust fund&
Information System and Voluntary
Register) Technical and contributions Trust
Scientific on migratory Fund
species (Parties lists, etc.)
CBD Technical and scientific Global Environment
cooperation, capacity Facility
building, technology
transfer and development
of guidelines; CHM
UNCCD Technical and scien- Global Mechanism
tific cooperation, capacity
building, technology de-
velopment and transfers;
coordinate, collect and
exchange data
ITPGRFA Technical and scientific Trust Fund
cooperation, capacity
building and technology
transfer; Global
Information System
Basel Technical √ Establishment of regional Trust Fund for the

and centres for training and Implementation
performance technology transfers; of the Convention
reporting information sharing and Technical
assistance Cooperation
Trust Fund to
Assist Developing
Countries

PIC Capacity building and Pending
information exchange
Biosafety √ √ Scientific and technical Global Environment
Protocol cooperation and capacity Facility
building; CHM and perfor-
mance review reports
POPs Capacity building and Global Environment
information exchange Facility Interim
Vienna Technical and scientific Trust Fund

cooperation, training and
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technology transfers; infor-

mation exchange
Montreal Techni- √ Technical cooperation Multilateral
Protocol cal and and technology transfers; Fund and Global
performance information exchange Environment
reporting Facility
assistance
UNFCCC √ √ Technology transfers and Global Environment
CHM Facility, Special
Climate Change
Fund and the
Least Developed
Countries Fund
Kyoto √ √ Technical and scientific Global Environment
Protocol research and cooperation, Facility and
technology transfers and Adaptation Fund
capacity building
Whaling Research, General

Conven- and Voluntary
tion Funds
London Technical Cooperation
Programme
UNCLOS Technical and scientific
cooperation to develop-
ing Parties, transfer of
marine and deep sea-bed
technologies; information
exchange
Fish Human resources Assistance Fund
Stocks development, technology
transfers and advisory
and consultative services
for developing countries;
information exchange

Non-Compliance Penalties
MEAs with an established NCP often enable the imposition of penalties on non-compliant
Parties. The penalties imposed under these procedures can be grouped into four categories:
Warnings; Suspension of Privileges; Trade Sanctions; and Liability.
Warnings can be considered as the first along a spectrum of severity in the penalties
that may be applied. As a next step, some MEAs provide for suspension of Parties’ rights
and privileges, notably, participation in voting or committees (see CITES, World Heritage
Convention and the Montreal Protocol). The imposition of trade sanctions encompasses
the suspension of trading privileges and other economic rights regulated by the MEA.349
Finally, the imposition of liability requires non-compliant Parties to compensate for their
non-compliance. This liability can take two forms: greater burdens in meeting the MEA
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obligations (see Kyoto Protocol) or reparations for any damage caused
Table 3.5. Non-Compliance Penalties

Convention Warning Suspension of Trade Liability
Privileges Sanctions
Ramsar
World Heritage Exclusion of mem-
bership from World
Heritage Committee
CITES √ Secretariat takes Suspension of
control of issuing trade in CITES-
permits listed species
and imposition
of conditions
CMS
CBD
UNCCD
ITPGRFA
349 It should be noted that the Whaling Convention does not have a multilateral NCP that can apply non-compliance response mea-
sures but that Parties tend to use unilateral trade sanctions in conjunction with diplomatic and/or political pressure to achieve the
desired outcomes.

Basel √ Re-import il-
legal exports.
Liability Pro-
tocol.
PIC
Biosafety √ Liability Proto-
col pending.
POPs
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Vienna
Montreal Protocol √ Suspension of rights Suspension
in institutional of trade,
arrangements, production and
financial mechanism consumption
and transfer of rights
technology
UNFCCC
Kyoto Protocol Suspending Carry-over of
right to trade obligations
in and use
flexibility
mechanisms
Whaling Conven- Diplomatic Unilateral fish-

tion pressure. eries trade or
access restric-
tions
London Liability subject
to further nego-
tiation: Article
X.
UNCLOS Several related
liability treaties.
Fish Stocks
Liability to make reparations for any damage caused is not truly part of a multilateral NCP
in any MEA. Rather it is a responsibility that is articulated in the MEA or its protocols and
that is determined bilaterally, often in an adversarial process. Thus, determinations of
liability are usually outputs of a dispute resolution process rather than an NCP. However,
liability to make reparations is surveyed here, in the context of non-compliance penalties,
because in effect exposure to liability is a disincentive to non-compliance.

A coordinated approach across MEAs to the imposition of penalties against a Party that
is recurrently non-compliant would have greater impact than ad hoc penalties. As noted
above, coordination would be likely to be useful across MEAs within a cluster but could
also be useful across MEAs that regulate common activities, such as international trade or
manufacturing.
A coordinated approach to the suspension of privileges, where these are properly man-
dated by a COP/MOP, would strengthen the deterrent effect of penalties. Thus, for MEAs
regulating related activities, the respective COP/MOPs might, by prior agreement, suspend
the privileges of a Party under each MEA when that Party is determined by one of the
COP/MOPs to be non-compliant (Such a coordinated approach to penalties would also
strengthen the deterrent impact of penalties for related regional MEAs that are applicable
in one region or across several regions.)
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Dispute Resolution Procedures
Dispute resolution procedures vary in sophistication, from simple provisions that require
Parties to negotiate bilaterally to resolve disputes peacefully, to the elaborate, compulsory
binding third-party dispute resolution procedures that can be found in the United Nations
Convention on the Law of the Sea. They are grouped in three clusters of compulsory
procedures: Negotiation, Conciliation and Arbitration. At one end of the spectrum, CITES
and CMS have dispute settlement provisions that provide that in the event of a dispute,
Parties must submit to negotiation. They may voluntarily submit to the Permanent Court of
Arbitration if negotiations fail. Thus, there is no obligation to pursue binding arbitration.
At the other end of the spectrum is UNCLOS, which has compulsory, binding arbitra-
tion for specific disputes (i.e. disputes concerning the seabed). Generally, however, the
arbitration procedure is invoked if the dispute has not been resolved through negotiation.
Conciliation is an option where negotiations fail, but is invoked only if one Party requests it
and the other accepts the invitation. Compulsory conciliation has emerged as the preferred
compromise struck by the negotiators of MEAs.
The invocation of compulsory dispute resolution procedures signals a crisis in environ-

mental diplomacy. In addition, the outcomes of such procedures remain unpredictable
and potentially expensive. Therefore, with few exceptions, the provisions of MEAs on bind-
ing dispute resolution tend to be weak and/or permissive. States are generally reluctant to
formulate legal obligations in MEAs that might compel them to submit their environmen-
tal conflicts to binding dispute resolution procedures for the reasons stated above. The
increasing trend towards the use of multilateral NCPs, as opposed to adversarial dispute
settlement procedures, seems to herald a new focus in international environmental law on
managing political relationships so as to maintain the viability and integrity of an MEA.

Table 3.6 Summarises Dispute Resolution Procedures.
Convention Negotiation Conciliation Binding

Arbitration
Voluntary Compulsory Voluntary Compulsory Voluntary Compulsory
Ramsar
World Heritage
CITES √ √
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CMS √ √
CBD √ √ √
UNCCD √ √ √
ITPGRFA √ √ √
Basel √ √ √
PIC √ √ √
Biosafety Protocol √ √ √
POPs √ √ √
Vienna √ √ √
Montreal Protocol √ √ √
UNFCCC √ √ √
Kyoto Protocol √ √ √
Whaling Conven-
tion
London
UNCLOS √ √ √
Fish Stocks √ √ √
As Table 6 illustrates, all but four Conventions have provisions on settling disputes between
Parties. The London Convention has developed a dispute settlement procedure but it has
never entered into force. With the exception of the dispute resolution procedures under
UNCLOS and the Fish Stocks Agreement, the MEA dispute resolutions procedures are

weak and tend to orientate Parties towards the voluntary, less adversarial methods of nego-
tiation and conciliation.
Given that dispute resolution procedures tend to comprise mainly compulsory conciliation
and voluntary binding arbitration, potential linkages are feasible in respect of common
dispute resolution bodies. For example, MEAs within each cluster could specify the same
arbitration body within their respective arbitration annexes. The arbitration body could
include the Permanent Court of Arbitration. The marine environment cluster could utilise
the Law of the Sea Tribunal. However, this may be of little utility as there appears to be
widespread avoidance of binding dispute resolution. Furthermore, some may consider that
the composition of an arbitration body should be determined having regard to the dispute
in question and, thus, prefer to continue to rely on mechanisms for the establishment of ad
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hoc arbitration bodies. Instead, greater emphasis is placed on non-compliance responses
to ensure that Parties comply with the Convention and that they collectively manage each
other’s compliance efforts.

Chapter IV.
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Synthesis and Analysis
of Law and Practice
• S yn t h esis an d A naly
Background on sis o f L aw an
Compliance d Pr ac tice
• COMPLIANCE 123
124 MA N U A L O N CMOechanisms
Compliance M P L I A N C E WUn
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MEAsE nv ironmen tal Agr eemen ts
Synthesis and Analysis of Law and Practice
This Chapter examines international practice in interlinking MEAs to achieve synergies

between their approaches to compliance. It does this by surveying current international
institutional efforts to promote interlinkages. These institutional efforts fall into two cat-
egories: those conducted by broad-mandate, multi-sectoral international organisations,
and those conducted by the individual MEA Secretariats themselves. The chapter also
notes examples of national practice in interlinking domestic compliance activities across
MEAs.
International Efforts towards Interlinkages in Compliance
The focus of this report is on interlinkages between MEA compliance systems. Therefore,
for the purposes of this chapter’s survey of international practice in interlinking MEA com-
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pliance systems, a distinction is maintained between interlinkage of actual MEA compli-
ance systems, as compared to interlinkage of MEA implementation efforts more generally.
Where interlinkages between MEA information systems have been promoted, these are
treated here as related to compliance information systems, as performance information is
a subset of the wider body of information related to implementation. It must be recognised
that international efforts to interlink MEA compliance systems form a subset of interna-
tional efforts to produce synergies in national implementation of MEAs.

Further, as the focus is on interlinkages between MEA compliance systems, we are con-
cerned with international, rather than domestic sub-national compliance arrangements.
Domestic compliance systems form a part of national implementation that serves to meet
international obligations.
International Organisations
The primary multi-sectoral international organisations engaged in promoting interlink-

ages are the United Nations Environment Programme, United Nations Development
Programme, United Nations University, the World Conservation Monitoring Centre and
the World Customs Organisation.
In 1997, UNDP convened an Expert Meeting on Synergies in National Implementation

between the Rio Agreements to seek ways to create synergies for the implementation of
the CBD, UNFCCC, UNCCD and the Forest Principles at the national level.350 The meeting
was based on the key ideas that recognising synergies is an important part of implement-
350 “Legislative complementarity and harmonization of biodiversity-related multilateral environmental agreements”, UNEP/UNDP/
GEF Biodiversity Planning Support Program, 1 February 2002, pp.49-50, <http://www.unon.org/dgefftp/NCSAResources/
Conventions%20Literature/UNCBD/CBD%20Obligations%20&%20other%20MEAs%20Feb02.pdf> (19/10/05).
• COMPLIANCE 125
ing MEAs and that in-country capacity building is fundamental to promoting synergies.351
Four workshops covered topics such as institutional requirements and structures, capac-
ity requirements, national planning requirements and information and reporting require-
ments.352 The final workshop, on information and reporting requirements, discussed the
commonalities in the data sets between the Rio agreements and proposed information
system models that would explore synergies during the various steps in the data collec-
tion and dissemination process: data need analysis; cross-comparison to identify synergy;
identifying gaps; data integration; creating information products; policy development;
policy implementation; reporting; and review.353 Overall, the meeting resulted in the pro-
posal of measures to improve national implementation, reduce duplication and increase
harmonisation.354
Following the Expert Meeting, the World Conservation Monitoring Centre produced the
1997 Feasibility Study for the Information Management Infrastructure for biodiversity-
related MEAs.355 The study was commissioned by UNEP and the Secretariats of the CBD,
CITES, CMS, Ramsar Convention and the World Heritage Convention to review the infor-
mation and reporting requirements of the Parties under each Convention and propose
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options for harmonisation.356 Commonalities in information were noted between CITES

and the CMS with regard to overlapping species and the World Heritage Convention and
the Ramsar Convention in relation to sites.357 The study ultimately recommended stream-
lining of national performance reporting under the conventions by clarifying the reporting
requirements of each MEA, developing and testing an integrated handbook for national
GEF Biodiversity Planning Support Program, 1 February 2002, pp. 49-50, <http://www.unon.org/dgefftp/NCSAResources/
352 “Synergies in National Implementation of the Rio Agreements”, Sustainable Energy and Environment Division Website, <http://www.
undp.org/seed/guide/synergies/siner3.htm> (19/10/05).
undp.org/seed/guide/synergies/siner3.htm> (19/10/05).
undp.org/seed/guide/synergies/siner3.htm> (19/10/05). The first workshop on institutional requirements and structures discussed
the potential of creating synergies in the areas of awareness raising, education, reporting, data gathering and inventories, public
participation, research and training. Mechanisms that were canvassed to facilitate integrated environmental planning included: a
cross-sectoral national committee; separate institutions conducting joint task forces to avoid duplication; or one high-level institu-
tion that is responsible for all instruments. The second workshop on capacity requirements discussed capacity building initiatives to
assist countries in complying with international obligations pertaining to monitoring, policy and law reform, impact assessment and
research, reporting, education and public awareness and training. The workshop identified the key indicators of a country’s existing
capacity to plan, implement and monitor implementation initiatives as including: knowledge and technical skills among decision-
makers on the country’s environmental problems; the degree to which existing plans are participatory and involve stakeholders;
familiarity and skill in using existing planning tools; and clearly defined roles and responsibilities between the public and private
sectors and civil society. The workshop ultimately recommended improving capacity in human resources, infrastructure develop-
ment and cooperation and coordination through technical assistance, information exchange and technology transfers. The third
workshop proposed three options on national planning strategies: producing separate plans for each instrument; developing an
umbrella plan encompassing all the Rio agreements; develop a mechanism to absorb the planning process for each instrument into
existing plans and frameworks.
357 J. Harrison and M. Collins, “Harmonizing the information management infrastructure for biodiversity-related treaties”, WCMC Website,
<http://www.unep-wcmc.org/latenews/previous/japanpaper.pdf#xml=/cgi-bin/pdf_hl?STEMMER=en&RGB=ff00ff&WORDS=feasibili
ty+study+&DB=unep-wcmc&URL=http://www.unep-wcmc.org/latenews/previous/japanpaper.pdf> (19/10/05).
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reporting and capacity building in national biodiversity information banks.358 It also rec-
ommended the development of an MEA information resource, covering five priority areas
including: harmonising document cover sheets; adopting standard definitions; harmonis-
ing web sites; developing a meta-database to indicate the information that is available and
its location; and developing an inter-convention website and search engine.359 Finally, the
study proposed developing a lessons-learned network to encourage the sharing of experi-
ence.360
The WCMC has since maintained the leading role in developing interlinkages and syn-
ergies for implementation of biodiversity-related MEAs. It provides support to the bio-
diversity-related MEAs by exploring ways to harmonize their information management
and national reporting obligations, most notably through reports and workshops.361 For
example, UNEP convened a workshop in 2000 entitled ‘Towards the Harmonization of
National Reporting’, which led to the development of pilot projects in four countries.362
Another workshop was convened in 2004 to review the conclusions and recommenda-
tions of the pilot projects and to discuss future harmonization priorities.363
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In 1997 UNU established the Interlinkages Initiative. In 1999, it held an International
Conference on Synergies and Coordination.364 The objectives of the Conference were to,
inter alia, examine existing initiatives on synergies and interlinkages and promote discus-
sion on these issues among relevant stakeholders.365 The conference was divided into four
working groups to cover information systems and exchange, financing, issues manage-
ment, and scientific mechanisms, with each working group producing a series of recom-
mendations on ways forward.366 Since the Conference, UNU has continued with its work
on exploring potential synergies. Other outcomes of the Interlinkages Initiative include
applied research and case studies on identifying constraints and overcoming challenges in
implementing MEAs, holding of workshops, capacity-building activities, and engagement
in related consultancies and policy design.367 The information systems aspects of this work
relates directly to compliance interlinkages.
The UNEP Division of Environmental Conventions was established in 1999 to identify syn-
ergies between MEAs at the global, national and regional levels, and to promote increased
361 http://www.unep-wcmc.org/ under ‘Harmonization of National Reporting’ (6/11/05).
364 http://www.unu.edu/inter-linkages/1999/frameset.htm (6/11/05).
365 http://www.unu.edu/inter-linkages/1999/frameset.htm (6/11/05.)
366 Interlinkages: Synergies and Coordination between Multilateral Environmental Agreements, UNU, Tokyo, Japan, 1999, p.6 at http://www.
unu.edu/inter-linkages/1999/frameset.htm (6/11/05).
367 http://www.unu.edu/inter-linkages/ilink/frameset.htm (6/11/05.)
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cooperation between UNEP and MEAs, harmonized information systems and coordinated
approaches to capacity building.368
The World Customs Organisation (WCO), an intergovernmental organisation established in

1952 to improve customs administration,369 signed a Memorandum of Understanding with
UNEP in 2003 that recognised the need for customs officers around the world to be better
equipped at detecting environmental crime. 370 To that end, the Green Customs Project
is a joint initiative between the WCO, Interpol, the CITES and Basel Secretariats and the
UNEP Division of Technology, Industry and Economics and Division of Environmental
Conventions, which aims to train customs officers in identifying and dealing with illegal
trade in wildlife and hazardous substances.371 This national customs strengthening exercise
seeks to develop national implementation capacity but does not focus on MEA compli-
ance systems at the international level.
MEA Secretariats
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In 2001, a Joint Liaison Group (JLG) between the CBD, UNCCD and UNFCCC was estab-
lished with the aim of exchanging information as well as exploring synergies and oppor-
tunities for cooperation between the Conventions.372 The JLG has produced a joint paper
entitled ‘Options for Enhanced Cooperation among the Three Rio Conventions’,373which
has recommended, inter alia, the development of joint working groups and actions
plans, cooperation between national focal points and between scientific subsidiary bod-
ies.374 Biannual meetings are held between the secretariats of five biodiversity-related
MEAS (CBD, CMS, CITES, World Heritage and Ramsar) that form the Biodiversity Liaison
Group.375 They are considering possible cooperation in harmonization of national report-
ing, including performance reporting.
Interlinkages between specific MEA Secretariats are set out below. Information concern-
ing interlinkages between them to assist general implementation is provided but is distin-
guished from compliance interlinkages. Treaty provisions governing relations with other
MEAs are also noted.
Among MEAs, the most intense interlinkage activity takes place within the biodiversity-
related cluster.
368 http://www.unep.org/dec/support/index.html and http://www.unep.org/dec/support/interlinkages.html (5/11/05)

369 Fact Sheet – “The World Customs Organisation” at http://www.wcoomd.org/ie/En/AboutUs/aboutus.html (5/11/05).
370 http://www.wcoomd.org/ie/En/search/search.html (5/11/05).
371 UNEP World Conservation Monitoring Centre, Synergies and Cooperation: A status report on activities promoting synergies and coop-
eration between Multilateral Environmental Agreements, in particular biodiversity-related conventions, and related mechanisms,
May 2004, p.36.
372 http://www.biodiv.org/cooperation/liason.shtml (5/11/05).
373 http://www.biodiv.org/doc/meetings/sbstta/sbstta-10/information/sbstta-10-inf-09-en.pdf.
374 http://www.biodiv.org/cooperation/liason.shtml.
375 Joint Web Site of the Biodiversity Related Conventions Biodiversity Liaison Group http://www.biodiv.org/cooperation/related-con-
ventions/blg.shtml.
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(a) Ramsar Convention
Compliance Ramsar Convention COP Resolution 7.4 relating to partnerships and coop-
eration with other conventions promotes harmonised information management infrastruc-
tures.
Implementation The Ramsar Bureau has signed MOUs with the following secretariats:
CMS in February 1997; UNCCD in December 1998; and the World Heritage Centre in
May 1999. A Memorandum of Cooperation between the Ramsar Bureau and the CBD
Secretariat was signed in January 1996 and a Joint Work Plan for 1998-1999 was devel-
oped and endorsed by COP-4 (1990). COP Resolution 7.4 endorses the Joint Work Plan
with the CBD and requests that the Bureau give priority in its programme of work for the
next triennium to the development of joint actions with the CMS, and to the implementa-
tion of the MOUs with the Secretariat of the UNCCD and the World Heritage Centre. It
also requests the development of a Memorandum of Cooperation with the UNFCCC.
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(b) World Heritage
Implementation The World Heritage Centre has signed MOUs with the Ramsar Secretariat
and the CMS Secretariat. A MOU is in development with the CBD Secretariat. Operational
Guidelines 42 and 43 of the World Heritage Committee stress the need for appropriate
coordination and information sharing with other conservation instruments including the
Ramsar Convention and CITES.376 To facilitate coordination, the Committee may invite
representatives of the intergovernmental bodies under such conventions to attend its meet-
ings as observers and appoints its own representatives to observe at meetings of the other
intergovernmental bodies when invited to do so.
(c) CITES
Compliance CITES COP Decision 13.92 directs the CITES Secretariat to collaborate with
the Secretariats of other biodiversity-related conventions to ensure the harmonization of
information management and reporting.
Implementation The CITES Secretariat cooperates with the Secretariats to the Basel
Convention and Montreal Protocol to combat illegal trade.377 The CITES Secretariat also
cooperates closely with the Ramsar Bureau.378 CITES COP Resolution 13.3 calls upon the
eration between Multilateral Environmental Agreements, in particular biodiversity-related conventions, and related mechanisms, May
2004, p.95.
2004, p. 78.
2004, p. 77.
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Secretariat to regularly review the Memorandum of Understanding (MOU) between the
Secretariats of CITES and the CMS; to seek submissions from CITES Parties on a joint work
programme with the CMS Secretariat and to invite the CMS Secretariat to meetings pertain-
ing to commonly protected species. In relation to the CBD Secretariat, a Memorandum of
Cooperation with an attached Work Plan for Implementation of Joint Activities has been
adopted.
(d) CMS
Compliance: CMS COP-6 (1999) established the CMS Information Management System,
which is maintained by UNEP-WCMC. The Information Management System collects data
and information from expert organisations, CMS national reports and other biodiversity
agreements such as the CBD and CITES and offers Parties information on: species listed in
the Appendices; species groups and issues relevant to CMS; links to the CBD’s Clearing-
House Mechanism; and information provided by Parties on the implementation of resolu-
tions and recommendations and the mobilisation of financial and technical resources.379
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Implementation An MOU on co-operation between the CMS and CBD Secretariats was
signed on 13 June 1996. CMS COP Resolution 6.4 requested the Secretariat to actively
‘foster synergy between global environmental conventions, giving particular emphasis to
the relationship with the Convention on Biological Diversity.’ CMS COP-7 (2002) invited
the CMS Secretariat to collaborate with the Secretariat of the CBD to integrate migratory
species into the latter’s National Biodiversity Strategies and Action Plans.380 An MOU
between the CMS and Ramsar Secretariats was signed on 18 February 1997,381 between
the CMS and CITES Secretariats on 18 September 2002, and between the CMS and
UNCCD Secretariats on 2 September 2003.382 There is also a MOU between the CMS
Secretariat and World Heritage Committee and there are joint programmes between the
CMS Secretariat and the CBD, CITES and Ramsar Secretariats.383
(e) CBD
Compliance COP-4 (1998) directed the Executive Secretary to improve information

exchange synergies with other biodiversity-related conventions.384 At COP-5 (2000), the
Informal Advisory Committee was directed to facilitate and encourage cooperation with
other international and regional information networks and initiatives.385 To this end, UNEP-
2004, p. 87.
2004, p. 84.
381 Ramsar Website, <http://www.ramsar.org/key_cms_mou.htm> (8/9/05).
382 CMS Website, <http://www.cms.int/bodies/ScC/12th_scientific_council/12th_ScC_documents.htm> (8/9/05).
383 http://www.biodiv.org/cooperation/related-conventions/mandates.shtml# (5/11/05).
384 CBD Decision IV/2.
385 CBD Decision V/14.
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WCMC has recommended the development of a biodiversity-related MEA database or
clearing-house mechanism to streamline national reporting.386
Implementation Given the broad scope of issues that are covered in the CBD, COP-4
(1998) sought to address its rapidly over-loaded decision-making process by intensify-
ing relationships with other Conventions.387 There are Memoranda of Understanding/
Cooperation and Joint Programmes between the CBD Secretariat and the Secretariats to
the CITES, CMS, Ramsar Convention, and World Heritage Convention.388
Decision VI/20 reinforces the need to design and implement mutually supportive activities
with other conventions and international organisations. Those noted include the: UNFCCC;
UNCCD; Ramsar Convention; CMS; and CITES. With Decision VII/26, the COP extended
the mandate of the Working Group on Review of Implementation of the Convention to
examine ways of increasing cooperation between the biodiversity-related Secretariats.
Legal Article 22 of the CBD provides that its provisions do not affect its Parties’ rights and
obligations under other international agreements, unless exercise of those rights or obliga-
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tions would cause damage or serious threat to biological diversity. Its provisions are to be
implemented consistently with UNCLOS, discussed below. In that respect, cooperative
arrangements have been concluded for marine and coastal biodiversity, including a joint
study between the CBD Secretariat and the United Nations Division of Ocean Affairs and
Law of the Sea on the relationship between the CBD and UNCLOS regarding the con-
servation and sustainable use of deep seabed biodiversity.389 Article 28 allows Parties to
adopt protocols to the CBD. However, Parties to any protocol must first be Parties to the
CBD.390
(f) UNCCD
Implementation The UNCCD Secretariat has signed MOUs with the Secretariats to the
Ramsar Convention, the UNFCCC, the CBD and the CMS. Parties are encouraged to coor-
dinate activities under UNCCD with those under other relevant international agreements,
particularly the UNFCCC and CBD.391
(g) ITPGRFA
Implementation The Treaty states that its objectives will be attained by closely linking
its implementation to the work of the Food and Agriculture Organisation of the United
Nations and to the CBD.392 Article 17.1 ties the Global Information System for Plant
2004, p.56.
387 CBD Decision IV/15.
388 http://www.biodiv.org/cooperation/related-conventions/mandates.shtml# (5/11/05).
2004, p. 66.
390 CBD Article 32.
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Genetic Resources with the clearing-house mechanism established under the CBD. Article
19.3 directs the Governing Body to establish and maintain close links with the CBD COP,
take note of relevant CBD COP decisions and inform the CBD COP of ‘matters regarding
the implementation of this Treaty.’
2. Hazardous Substances Management
In 2002 the UNEP Governing Council adopted Decision SS.VII/3, which established a
‘Strategic Approach to International Chemicals Management’ (SAICM).393 Paragraph 1 of
the Decision states that there is a need to develop a strategic approach and endorses the
Intergovernmental Forum on Chemical Safety Bahia Declaration and Priorities for Action
Beyond 2000 as the foundation of the approach. The Strategic Approach is to take into
account the economic, social and environmental factors of chemical management as well
as sustainable development.394 In 2003, Decision 22/4 IV called for a draft approach to be
prepared for discussion at preparatory meetings with a view to eventually convening an
international conference.395 An International Conference on Chemicals Management will
take place in Dubai in early 2006.396
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(a) Basel
Implementation The Secretariats to the Basel Convention, CITES and the Montreal Protocol
work together to combat illegal trade and have signed an MOU to that effect.397 The Basel,
POPs Convention and the PIC Convention Secretariats, discussed below, undertake joint
activities including regional and sub-regional workshops on the integrated implementa-
tion of the three Conventions.398 The Basel Convention Parties have engaged in coopera-
tion with the IMO and the ILO concerning the issue of ship recycling. Furthermore, the
Secretariat works with the World Customs Organization on the HNS code, to facilitate the
detection of non-compliance, and coordinated approaches between the two organiza-
tions. The Basel Convention Regional Centres play an important role in implementing a
wide variety of activities, in accordance with directions of the COP, to facilitate implemen-
tation of, and compliance with, the Convention by Parties, and to coordinate with relevant
activities of regional organizations and mechanisms.
Legal Parties may enter into bilateral, multilateral and regional agreements and arrange-
ments provided such agreements do not derogate from the ESM of hazardous and other
wastes as required by the Basel Convention.399 They may also adopt national legislation
classifying wastes as hazardous that are not covered by the Convention annexes.
393 http://www.chem.unep.ch/saicm/ (5/11/05).

394 Decision 22/4 IV, paragraph 1.
395 Decision 22/4 IV paragraphs 2 and 3.
396 http://www.chem.unep.ch/saicm/ (5/11/05).
2004, p.78.
2004, p. 125.
399 Basel Article 11.
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(b) PIC
Implementation Coordinated implementation activities have been undertaken with the

Basel and POPs Conventions.400 At COP-1 (2004), the Parties to the PIC Convention
decided to invite other relevant regional entities, in particular the Basel Convention
regional centres and regional coordinating centres, international organisations and MEAs
to participate in a regional delivery system.401
(c) Biosafety Protocol
Legal The provisions of the CBD relating to its protocols apply to the Biosafety Protocol.402
Parties may enter into bilateral, regional and multilateral agreements regarding the trans-
boundary movement of LMOs provided they comply with the Protocol.403
(d) POPs
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Implementation Joint activities are conducted between the Basel, POPs and PIC
Conventions.404 The POPs Convention Secretariat is directed to cooperate closely with the
Secretariat of the Basel Convention in relation to disposal of POPs. This includes establish-
ing levels of destruction and irreversible transformation necessary to ensure that the char-
acteristics of POPs (set out in Annexes A, B, C and D, paragraph 1 of the POPs Convention)
are not exhibited; to determine criteria for environmentally sound disposal; and to ensure
that Annex A, B and C chemicals are disposed of according to ESM principles.405
3. Atmospheric Emissions Control
(a) Vienna Convention

Legal Parties may not become a Party to any protocol under the Convention if they are not
Parties to the Convention.406
2004, p.125.
2004, p.125.
405 POP Convention, Article 6(2) and Decision I/5.
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(b) Montreal Protocol
Implementation The MOU concerning cooperative capacity building of customs controls

with the Basel Convention and CITES has been previously noted.407 At MOP-10 (1998),
Parties noted that the greenhouse gases included in Annex A of the Kyoto Protocol include
hydrofluorocarbons (HFCs) and perfluorocarbons (PFCs) and that the Montreal Protocol’s
Technology and Economic Assessment Panel had identified HFCs and PFCs as alternatives
to ozone-depleting substances.408 Decision X/16 requested the relevant Montreal Protocol
committee to assess the implications of the inclusion of HFCs and PFCs in the Kyoto
Protocol for the implementation of the Montreal Protocol and to continue to cooperate
with the relevant bodies under the UNFCCC and Kyoto Protocol.
(c) UNFCCC
Implementation Decision 13/CP.8 affirms the need for enhanced cooperation between
the UNFCCC, the CBD and the UNCCD and requests the UNFCCC Subsidiary Body for
Scientific and Technical Advice to continue cooperating with the equivalent CBD and
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UNCCD bodies. A Joint Liaison Group has been established between the CBD, UNFCCC
and UNCCD to explore coordination issues, with the Ramsar Convention having observer
status.409
(d) Kyoto Protocol
Legal The legal relationship between the Kyoto Protocol’s compliance mechanism and
the UNFCCC’s Multilateral Consultative Process is unclear, due to the overlap between
the facilitative functions of each. The relationship between the Protocol’s non-compliance
mechanism and the dispute resolution procedures it inherited from the UNFCCC also
remains to be explored.410 However, in terms of function, it can be assumed that the elabo-
rate and established multilateral institution for the management of compliance operated
by the Kyoto Compliance Committee will be preferred to the vague UNFCCC Multilateral
Consultative Process and to adversarial confrontations under the UNFCCC dispute resolu-
tion procedures.
2004, p.78.
408 See also UNU Report, ‘Inter-linkages between the Ozone and Climate Change Conventions’, 2001.
2004, p. 103.
410 See Fitzmaurice, M, ‘The Kyoto Protocol Compliance Regime and Treaty Law’, Singapore Yearbook of International Law, Vol.8, 2004,
p.23.
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4. Marine Environment Protection
(a) Whaling
Implementation At its meeting in 2000, the Commission noted the importance of co-oper-
ation with other organisations in scientific research and that the Commission has agreed
an MOU with the CMS Secretariat.411
(b) London Convention
Implementation In 1991, the Parties to the London Convention voted to request the Basel
Secretariat to consider the London Convention when preparing its technical guidelines.412
They have since cooperated with Basel Convention particularly concerning the scrapping
of ships, the drafting of the 1996 Protocol to the London Convention and the Global Waste
Inventory and Database.
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(c) UNCLOS
Implementation Studies have been conducted into the relationship between the CBD and
the UNCLOS, with specific regard to the conservation of marine biodiversity.413
(d) Fish Stocks
Legal Article 4 of the Fish Stocks Agreement states that the Agreement must be interpreted
and applied consistently with UNCLOS.
411 IWC Website, <http://www.iwcoffice.org/meetings/meeting2000.htm#coop> (17/9/05).

2004 , p. 66.
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TABLE 4.1: Implementation Cooperation between MEA Secretariats
KEY: Bold = compliance interlinkages √ = MOU
* = Other forms of cooperation (e.g. Joint Working Groups etc.)
- = Cooperation by virtue of Convention/Protocol relationship
Montreal Protocol
World Heritage
Kyoto Protocol
Fish Stocks
UNFCCC
UNCLOS
Biosafety
ITPGRFA
UNCCD
Whaling
London
Ramsar
Vienna
CITES
POPs
Basel
CMS
CBD
PIC
Ramsar √ √ √* √* √ * *
World √ * √* √* *
Heritage
CITES √ * √* √* √ √
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CMS √* √* √* √* √ √
CBD √* √* √* √* √* * -* * * *
UNCCD √ * √ √* √ √ *
ITPGRFA *
Basel √ * * √ *
PIC * *
Biosafety -*
POPs * *
Vienna -
Montreal √ √ √ - * *
Protocol
UNFCCC * * √ * -
Kyoto Pro- * * * * -
tocol
Whaling √
Conven-
tion
London *
Conven-
tion
UNCLOS *
Fish
Stocks
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Table 4.1, above, shows that the greatest concentration of interlinkages between interna-
tional compliance systems occurs between the biodiversity-related MEAs, other than the
UNCCD. Those MEAs also enjoy the greatest concentration of interlinkages for general
implementation. Again in relation to general implementation, the other areas of concen-
trated MEA interlinkages occur within clusters, i.e., the hazardous substances and atmo-
sphere clusters, with the notable exception of the marine cluster. There is also a relatively
high level of implementation interlinkage between the biodiversity-related and atmosphere
clusters, comprising the only significant area of interlinkages that extend across clusters.
5. National Efforts Supporting Interlinkages in Compliance
At the national level, interlinkages in domestic compliance systems can be made to gener-
ate synergies across national efforts to implement MEAs. They are to be contrasted with
multilateral compliance mechanisms. Domestic compliance systems operate at a level
below the international personality of the State. They form a part of national implementa-
tion to meet international obligations.
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Domestic compliance interlinkages pose a challenge to the national governance capabili-
ties. This is because national governance structures are traditionally built upon distributions
of responsibilities based on a concept of management sectors or portfolios. Those sectors
or portfolios are usually firmly defined to limit the mandate of a government institution
within its allotted management responsibilities. Building bridges across these institutional
‘silos’ can be difficult and resource intensive.
Some international organisations are engaged in national capacity building to enhance

interlinkages in national implementation of MEAs. This capacity building frequently seeks
to enhance general systems for domestic compliance with MEAs and, to a lesser extent,
interlinkages between them. The work of the UNDP, UNEP and WCO has been mentioned
above.
The International Network for Environmental Compliance and Enforcement (INECE) takes
generic action to build national compliance and enforcement capabilities. It has developed
a set of environmental compliance and enforcement (ECE) indicators for assessing program
performance. They are societal response indicators that describe the “level of activity or
commitment made by Government, and a set of results which contribute to an important
social goal such as reducing or preventing environmental pollution.”414 The INECE has
also developed a guidebook to assist countries in identifying, developing and testing ECE
indicators415 and a guidebook to assist countries in developing and implementing compli-
ance and enforcement strategies in relation to their own laws and policies.416 The latter
guidebook discusses the key components of a country’s compliance and enforcement
program as: creating requirements that are enforceable; knowing who is subject to the
requirements and setting priorities; promoting compliance in the regulated community;
414 “Performance Measurement Guidance for Compliance and Enforcement Practitioners”, INECE Website, <http://www.inece.org/indica-
tors/guidance.pdf>, p.2 (19/10/05).
415 “Performance Measurement Guidance for Compliance and Enforcement Practitioners”, INECE Website, <http://www.inece.org/indica-
tors/guidance.pdf>, p.2 (19/10/05).
416 “Principles of Environmental Enforcement”, INECE Website, <http://www.inece.org/enforcementprinciples.html> (19/10/05).
• COMPLIANCE 137
monitoring compliance with the requirements; responding to breaches; identifying roles
and responsibilities; and evaluating the performance of the program.417
The UNU has conducted specific case studies of institutional coordination in relation to
the implementation of MEAs that touch upon domestic compliance systems in Malaysia
and Thailand,418 in the Pacific Islands419 and more broadly in Asia and the Pacific.420 It is
beyond the scope of this paper to conduct detailed national case studies of domestic com-
pliance interlinkages in the implementation of MEAs. However, a few regional sketches
are set out to indicate the nature of national developments. These suggest that, except
for countries in North America and Europe, domestic interlinkages are at early stages of
development and mostly concern the establishment of integrated environmental monitor-
ing databases rather than integration of performance information.
(a) Asia and Pacific
Environmental agencies have emerged in South East Asian countries to play a coordinat-
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ing role between the various agencies tasked with environmental responsibilities, develop
and implement policies and conduct awareness-raising activities.421 For example, both
Malaysia and Thailand have developed institutional frameworks to deal with specific envi-
ronmental issues, although there is a need for increased cross-sectoral harmonization.422
In Malaysia, the Inter-Agency Planning Group oversees the implementation of Agenda
21 while the Ministry of Science, Technology and the Environment formulates policy and
deals with inter-ministerial coordination issues for the Rio Conventions.423 Thailand has
a National Environmental Board, which oversees the implementation of MEAs through
numerous committees and sub-committees, including the National Committee on the
Convention of Biological Diversity and the National Committee on Climate Change.424
In South East Asia, national databases on natural resources and environment are develop-
ing, although problems exist in relation to lack of coordination, poor and uneven report-
ing, outdated information and lack of standardised methodologies.425 In the Lao People’s
417 “Principles of Environmental Enforcement”, INECE Website, <http://www.inece.org/enforcementprinciples.html> (19/10/05).

418 Brook Boyer Institutional Coordination, Multi-stakeholder Participation and the Implementation of MEAs: National Experiences of
Malaysia and Thailand, United Nations University Paper prepared for the Regional Consultation / Workshop on Inter-linkages, Kuala
Lumpur, 26-27 February 2001, Discussion Paper 2001-003.
419 Jerry Velasquez; Piest Uli and Mougeot, Jacques (edited by Shona E.H. Dodds and based on the draft national reports made by
Martin Tsamenyi and Richard Kenchington) Synergies and Coordination among MEAs: Pacific Islands Case Study United Nations
University 2002, Tokyo.
420 Brook Boyer; Velasquez, Jerry and Piest, Uli Synergies and Coordination among MEAs: Regional & National Approaches in Asia and the
Pacific United Nations University 2002, Tokyo.
421 Economic and Social commission for Asia and the Pacific State of the Environment in Asia and the Pacific 1995, Bangkok, p.469.
Lumpur, 26-27 February 2001, Discussion Paper 2001-003, p.25.
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Democratic Republic, for example, water, meteorological, soil and land databases have
been streamlined into an integrated database that is managed by the Division of Inventory
and Planning of the Department of Forestry.426 In Vietnam, the National Information and
Documentation Centre manages two networks of environmental information.427 At the
regional level, information and experiences are shared through organisations such as the
Association of South East Asian Nations (ASEAN).
Most countries in South East Asia have monitoring systems for gathering environmental
data. Malaysia routinely monitors air and water quality and has also developed a system
of monitoring oil spills.428 Singapore and Thailand also have air quality monitoring sys-
tems.429 Vietnam has outlined a policy on environmental assessment in its National Action
Plan on Environment and Sustainable Development.430 The Philippines has formulated its
own Action Plan following UNCED recommendations.431 The International Environmental
Affairs Staff of the Department of Environment and Natural Resources coordinate monitor-
ing activities.432
Within South Asia, ministries of environment have been established in Bangladesh, Bhutan,
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India, the Maldives, Nepal and Sri Lanka to implement environmental laws and develop
and implement policies aimed at environmental conservation.433 In Bhutan, a National
Environment Commission was established in 1992, which is a high-level cross-sectoral
body that is responsible for creating legislation and ensuring that the Government’s inter-
national obligations with various Conventions are satisfied.434 Similarly, in Nepal, the
National Planning Commission assesses and approves environmental policies, coordinates
cross-sectoral activities and performs monitoring functions.435 There is regional progress in
the collection and dissemination of environmental information. For example, India intro-
duced its Environmental Information System in 1984, which uses a network of databases
on ecological and biodiversity research to integrate national efforts to collect environ-
mental data.436 At the regional level, the South Asian Cooperative Environment Program,
established in 1982 by the Governments of South Asia, promotes cooperative activities to
strengthen institutions and capacity and provide a forum for information exchange.437 Its
activities are complemented by the activities of the South Asian Association for Regional
Cooperation, which focuses on economic but also covers environmental cooperation.438
Within the Pacific, the UNU has recently noted significant information management
problems. Databases exist but remain unconnected. No Pacific Island country has yet
developed a standardized format for collecting and storing data.439 Palau has attempted to
432 UNU Inter-linkages Policy Brief No. 3, National and Regional Approaches to in Asia and the Pacific, 2002, p.9.
433 Regional Overview (CD).
436 Economic and Social commission for Asia and the Pacific State of the Environment in Asia and the Pacific 1995, Bangkok p.529.
439 UNU Inter-linkages Policy Brief 4, Pacific Islands Case Study, 2002, p.35.
• COMPLIANCE 139
address some of these issues, at least in relation to the atmosphere MEAs, with the creation
of the Office of Environmental Response and Coordination that acts as a national focal
point for the dissemination of information to relevant national agencies.440
(b) Europe
The European Network for the Implementation and Enforcement of Environmental Law
(IMPEL) is a network of regulators that focuses on training inspectors, exchanging infor-
mation and experience between Member States and reviewing EU environmental leg-
islation.441 IMPEL’s role is recognised in the 6th Environment Action Programme, which
was passed by the European Parliament on 22 July 2002. Article 3.2 provides that the
objectives of the Programme shall be pursued by addressing infringements of environ-
mental legislation, promoting improved monitoring and inspection standards by Member
States, systematically reviewing the application of environmental legislation across the
Community and improving exchange of information on best practice on implementa-
tion including by IMPEL. Article 9.1 outlines priority international environmental areas
and Article 9.2(j) states that these international objectives shall be achieved by means of
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promoting policy coherence. This involves linking the work done within the framework
of different MEAs, including assessing inter-linkages between the biodiversity and climate
change conventions.
(c) North America
The Commission for Environmental Cooperation (CEC) was created by the USA, Canada
and Mexico under the North American Agreement on Environmental Cooperation to deal
with regional environmental issues, trade and environmental conflicts and to promote
environmental law enforcement.442 The CEC has a Law and Policy program to address
compliance with and enforcement of environmental laws within the region443 and includes
an Enforcement and Compliance Cooperation Program that aims to provide support to
the North American Working Group on Enforcement and Compliance Cooperation.444
It focuses on capacity building in areas including CITES tracking and enforcement,
wildlife training exchanges, smuggling ozone depleting substances and transboundary
law enforcement cooperation workshop.445 The Working Group comprises senior level
enforcement officials and members of the North American Wildlife Enforcement Group
(NAWEG), which is a regional network of wildlife enforcement officials.446 Additionally,
the CEC has organised projects on cooperating on north American air quality that focus
on exchanging technical data and developing strategies to address common concerns.447
440 UNU Inter-linkages Policy Brief 4, Pacific Islands Case Study, 2002, p.29.
441 See IMPEL Website, <http://europa.eu.int/comm/environment/impel/about.htm#introduction> and <http://europa.eu.int/comm/
environment/impel/about.htm#activities> (19/10/05).
442 Commission for Environmental Cooperation, <http://www.cec.org/who_we_are/index.cfm?varlan+english> (19/10/05).
443 Commission for Environmental Cooperation, <http://www.cec.org/pubs_docs/documents/index.cfm?varlan=english&ID=1024>
(19/10/05).
444 Commission for Environmental Cooperation, <http://www.cec.org/programs_projects/law_policy/project/index.cfm?projectID=32&
varlan=english> (19/10/05).
445 “Enforcement and Compliance Cooperation”, <http://www.cec.org/files/pdf/LAWPOLICY/421-03-05_en.pdf> (19/10/05).
446 “Enforcement and Compliance Cooperation”, <http://www.cec.org/files/pdf/LAWPOLICY/421-03-05_en.pdf> (19/10/05).
447 CEC Website, <http://www.cec.org/programs_projects/pollutants_health/project/index.cfm?projectID=22&varlan=english>
(19/10/05).
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There are also projects dedicated to capacity building for pollution prevention among key
stakeholders.448
In Canada, the position of Commissioner for the Environment and Sustainable Development
was established in 1995 within the Canadian Office of the Auditor General.449 The
Commissioner provides performance audits to the Canadian Parliament on whether
environmental policies are being implemented and delivering the desired results. The
Commissioner has recently reviewed the Canadian Biodiversity Strategy 1996, ultimately
identified a lack of information on what has been achieved under the policy and on
what remains to be achieved.450 The Report noted that responsibility for biodiversity in
Canada spans several departments451 and that there are also issues relating to cooperation
between the levels of government within the Canadian Federation. Senior officers from
across portfolios and Governmental tiers form a Biodiversity Working Group to develop
and coordinate implementation plans.452 Environment Canada responded by building
biodiversity into a key component in other environmental management sectors, including
the Oceans Action Plan, National Forest Strategy, the Agricultural Policy Framework and
the Invasive Alien Species Strategy.453 In June 2005, the Federal, Provincial and Territorial
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Ministers and Deputy Ministers of wildlife, forestry and fisheries and aquaculture agreed
to collaborate on the implementation framework of the Biodiversity Strategy that focuses
on outcomes.454
(d) South America
The INECE held its Sixth International Conference on Environmental Compliance and
Enforcement in 2002.455 It demonstrated that, although most South American countries
lack ECE indicators, they do have institutional mechanisms to coordinate environmental
activities.456 In Chile, for example, an Environmental National Commission was estab-
lished as an inter-ministerial and cross-sectoral coordination body, consisting of a Council
of Ministers with environmental functions, cross-sectoral Consulting Council and an
Executive Direction.457 Brazil has an Environmental National System, which is composed
of different levels of Government and executive organs at the Federal level.458 The World
448 CEC Website, <http://www.cec.org/programs_projects/pollutants_health/project/index.cfm?projectID=22&varlan=english>

(19/10/05).
449 Office of the Auditor-General, http://www.oag-bvg.gc.ca/domino/cesd_cedd.nsf/html/cesd_index_e.html (19/10/05).
450 “Canadian Biodiversity Strategy – A Follow-Up Audit”, Report of the Commissioner of the Environment and Sustainability, <http://
www.oag-bvg.gc.ca/domino/reports.nsf/html/c20050903ce.html> (19/10/05), at 3.53.
455 D. Zaelke, K Markowitz and T Higdon, “Strengthening Environmental Enforcement and Compliance Through Networks”, p.121, FARN
Website, < http://www.farn.org.ar/docs/p32/en17_Zaelke.pdf> (19/10/05).
456 Maria Eugenia Di Paola, “Towards a Program of Environmental Compliance and Enforcement in Latin America”, p.23, FARM Website,
<http://www.farn.org.ar/docs/p32/en05_DiPaola1.pdf> (19/10/05).
• COMPLIANCE 141
Bank Institute Environmental Governance Program has also recently co-hosted workshops
in Brazil to build capacity on compliance and enforcement, including compliance indica-
tors.459 In Argentina, a Federal Environmental Council was created to exchange informa-
tion and coordinate environmental policies.460 Additionally, Argentinean authorities have
signed inter-Governmental agreements to coordinate environmental compliance across
the levels of Government on the issue of hazardous wastes.461
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PSS/06-54746/500/December06/PO
459 INECE Website, <http://www.inece.org/region_americas_south.html> (19/10/05).

460 Maria Eugenia Di Paola, “Towards a Program of Environmental Compliance and Enforcement in Latin America”, p.25, FARN Website,
<http://www.farn.org.ar/docs/p32/en05_DiPaola1.pdf > (19/10/05).
461 Maria Eugenia Di Paola, “Towards a Program of Environmental Compliance and Enforcement in Latin America”, p.25, FARN Website,
<http://www.farn.org.ar/docs/p32/en05_DiPaola1.pdf > (19/10/05).
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Compliance Mechanisms Under Selected Multilateral Environmental Agreements-2007761

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Compliance Mechanisms Under Selected Multilateral Environmental Agreements-2007761

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United Nations Environment Programme

Compliance Mechanisms Under

Job Number: DEL/0931/NA

Produced by the UNEP Division of Environmental Law and Conventions

Cover Design: Division of Communication and Public Information, UNEP

Design and Layout: UNON/Publishing Section Services/Nairobi; Paul Odhiambo

Image Credits: K. Irlmeier / Still Pictures

 Co m pl ia n ce M ech an i s m s U n d e r S e l ect e d Mult i l at er a l E nvironmen ta l Agreemen t s

Comparative Compliance Mechanisms....................................................................... 9

Chapter II Compliance Mechanisms Of Major Global Meas...........................25

United Nations Convention On The Law Of The Sea 1982............................ 91

 Co mp l ia n ce M e ch an i s m s U n d e r S e l ect e d Mu lti l ater a l E nvironmen ta l Agreemen t s

Chapter Iii. Comparative Analysis.................................................................101

Chapter IV. Synthesis and Analysis of Law and Practice................................123

T his report seeks to perform a comparative analysis of compliance mechanisms under

Definition of compliance mechanisms is less straight-forward than might be expected

Compliance mechanisms are defined in this report under four headings:

Comparative Compliance Mechanisms

(a) Performance Review Information

Performance review information is gathered primarily through national self-reporting but a

Potential interlinkages in performance review information gathering arise between MEAs

Research work on harmonization of performance reporting formats across MEAs has

10 Co m pl ia n ce M ech an i s m s U n d e r S e l ect e d Mult i l at er a l E nvironmen ta l Agreemen t s

(c) Non-Compliance Response Measures

Incentives include enhanced international cooperation with the non-compliant Party in

Disincentives to continued non-compliance can be imposed in less than a quarter of the

Interlinkages across MEAs of considerations specific to a particular non-compliant Party

(d) Dispute Settlement

12 Co mp l ia n ce M e ch an i s m s U n d e r S e l ect e d Mu lti l ater a l E nvironmen ta l Agreemen t s

The greatest concentration of existing interlinkages between international compliance

The success of interlinkages between MEA compliance mechanisms at the international

In t rod uct ion 15

This report investigates compliance mechanisms under selected multilateral environment

• I n trod uct ion 17

n The adoption of Guidelines on Compliance with and Enforcement of

n The Global Judges Symposium on Sustainable Development and the Role of

n The Round Table Dialogue on Advancing the Millennium Development Goals

18 Co mp l ia n ce M e ch an i s m s U n d e r S e l ect e d Mu lti l ater a l E nvironmen ta l Agreemen t s

Concern to assess progress towards a variety of goals in international environmental gov-

Part II of the UNEP Guidelines define enforcement as

20 Co mp l ia n ce M e ch an i s m s U n d e r S e l ect e d Mu lti l ater a l E nvironmen ta l Agreemen t s

Interlinking in the context of separate compliance mechanisms of individual MEAs is the

Monitoring can refer to scientific and technical monitoring of environmental conditions or

Synergy is described in the Oxford Dictionary as ‘Interaction or cooperation of two or more

Verification is a process undertaken to test the accuracy of data or information provided

22 Co mp l ia n ce M e ch an i s m s U n d e r S e l ect e d Mu lti l ater a l E nvironmen ta l Agreemen t s

• Compliance mec h ani sms

n Wetlands – Convention on Wetlands of International Importance especially as

• Compliance mec h ani sms

n Plant genetic resources – International Treaty on Plant Genetic Resources for

Identifying Components of Compliance Mechanisms of MEAs

To compare particular compliance mechanisms across MEAs, it is necessary to first identify

(a) Performance Review Information

• Compliance mec h ani sms

Figure 1: Information Cycle

(c) Non-Compliance Response Measures

When an instance of substantial non-compliance is identified under a non-compliance

• Compliance mec h ani sms

important financial mechanisms is the Global Environment Facility (GEF),

(ii) In some cases, disincentives to continued non-compliance can be imposed.

Other disincentives to non-compliance are warnings and penalties. The latter

Thus, responses to non-compliance vary, from requiring additional reports (non-compli-

(d) Dispute Resolution

Co m pl ia n ce M ech an i s m s U n d e r S e l ect e d Mult i l at er a l E nvironmen ta l Agreemen t s

Co mp l ia n ce M e ch an i s m s U n d e r S e l ect e d Mu lti l ater a l E nvironmen ta l Agreemen t s